Nalwanga (Migration)

Nalwanga (Migration) [2020] AATA 5660 (24 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Priscilla Bbosa Nalwanga
CASE NUMBER:  1901882
DIBP REFERENCE(S):  BCC2018/4624654
MEMBER:Mark Bishop
DATE:24 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 24 September 2020 at 12:41pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – false or misleading information– requirements of PIC 4020 can not be waived – compelling circumstances don’t justify the granting of the visa –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.217, Schedule 4
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
Singh v Minister for Immigration & Anor (2016) FCCA 774
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 January 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 22 October 2018. 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 they found that the applicant had provided false or misleading information to the Department and therefore did not satisfy the PIC 4020 criteria.
The applicant applied for review of the delegates decision to refuse to grant the visa on 28 January 2019. On 7 July 2020 the applicant was invited under s.359(2) of the Act to provide information to the Tribunal in writing addressing the criteria in Schedule 4 to the Regulations. The Tribunal advised that the requested information should be received by a certain date. The applicant requested an extension of time on 19 July 2020, the request for an extension of time was refused and on 20 July 2020 the applicant provided information to the Tribunal.
On 24 September 2020, the applicant appeared before the Tribunal by telephone to give evidence and present arguments. The applicant was represented in relation to the review by a registered Migration Agent who also attended the hearing by telephone. The Tribunal also received oral evidence from two of the applicant’s colleagues from her current place of employment, the service manager and care coordinator.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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).
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?
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.
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.
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.
Background to Review Application
The Tribunal has prepared the following timeline based upon information provided by the applicant and evidence given to the Tribunal:
Jan 2014
·Applicant arrived in Australia (TU 576 visa)
Nov 2014
·Employed as Personal Care Worker, Murray Mudge Residential Aged Care, Glenelg SA (worked until Aug 2015)
Jul 2015
·Completed Master of Public Health, University of Adelaide
Aug 2015
·Applicant departed Australia
Oct 2015
·Employed as Registered Nurse Consultant, Makerere University-John Hopkins University, Kampala Uganda (worked until January 2016)
Apr 2016
·Employed as a Registered Nurse Study Coordinator, Makerere University-John Hopkins University, Kampala Uganda (worked until June 2018)
Jan 2017
·Applicant’s son born
Jul 2018
·Applicant arrived in Australia (600 Visitor visa)
·Completed IELTS test overall test score 7.5
Jul 2018
·Employed as Registered Nurse Bridging Student Placement Townsville Hospital Health Service (worked until 7 September 2018)
Sep 2018
·Employed as Registered Nurse Bridging Student Placement St Jude’s Hostel Guildford WA (worked until 14 September 2018)
·Completed Initial Registration for Overseas Registered Nurses, Institute of Health and Nursing Perth WA
22 Oct 2018
·Applied for student visa
Nov 2018
·19 Nov 18 applicant obtained APHRA
·Commenced Graduate Diploma of Nursing (1-year course that the applicant did not complete. See in addition paragraph 34 below.)
Jan 2019
·22 Jan 19 - Student visa application refused by delegate
·28 Jan 19 – applicant applied to AAT for review of the delegates decision
4 Jun 2019
·Applicant commenced employment with Amana Living
15 June – 16 July 2019
·Applicant travelled to Uganda to see her son
Jun 2020
·Obtained AHPRA registration (until May 2021)
Aug 2020
·Commenced Diploma of Community Services at Western Australia Institute of Further Studies
·8 Aug 20 - Applicant moved to Kalgoorlie WA to work as a registered nurse at Edward Collick Care Home
Sep 2020
·WAIFS confirmed applicant can continue to study online
Aug 2021
·Due to commence Advanced Diploma of Community Sector Management at Western Australia Institute of Further Studies
In evidence to the Tribunal the applicant advised the timeline outlined in paragraph 11 above was correct in all respects.
Evidence before the Tribunal
The applicant applied for a Student Subclass 500 visa on 22 October 2018 while onshore. The applicant provided with her application for a student visa various documents in support of her application including, identity documents, a statement for Genuine Temporary Entrant, a copy of a Certificate of Overseas Health Cover dated 19 October 2018, academic transcripts for Bachelor of Science in Nursing from Makerere University, Master of Public Health from University of Adelaide, a certificate of competition for Initial Registration for Overseas Registered Nurses from Institute of Health and Nursing Australia, letter of offer and Overseas Student Confirmation-of-Enrolment for a Graduate Diploma of Nursing at the Institute of Health and Management. The applicant also provided evidence of financial capacity including a supporting statement from the applicant’s aunt and uncle and a bank statement from the United Bank of Africa for the period 16 May 2018 to 18 October 2018 in the applicant’s uncles name.
On 18 December 2018, an officer of the Department wrote to the applicant advising that after conducting checks to confirm the information included in her application for a student visa, it was found that certain information was suspected to be a bogus document. The officer of the department requested comment on this information, the applicant provided a written submission, an IELTS test result and a copy of a bank statement for an account in her own name.
On 22 January 2019, the delegate refused to grant the applicant a student visa as they found that the applicant had provided false or misleading information to the Department. The applicant applied to the Tribunal for review of the delegates decision on 28 January 2019.
On 7 July 2020, the Tribunal invited the applicant under s.359(2) of the Act to provide information addressing the requirements that the applicant is involved in a registered course of study and that they satisfy the PIC 4020 criterion in Schedule 4 to the Regulations. The applicant requested an extension of time on 19 July 2020, the request was refused and on 21 July 2020 the applicant provided the Tribunal with a copy of a written submission dated 20 July 2020, an APHRA certificate of registration as a registered nurse for the period 1 June 2020 to 31 May 2021, an Overseas Student Confirmation-of-Enrolment for a Diploma of Community Services and Advanced Diploma of Community Sector Management, and a statement of service from the applicants current employer.
On 27 August 2020, the applicant was invited to attend before the Tribunal by telephone, prior to the scheduled hearing, the applicant’s representative provided the Tribunal with a copy of a written submission dated 14 September 2020, a statutory declaration of the applicant declared on 12 September 2020, payslips, notice of assessments for 2019 and 2020, a tax receipt dated 18 October 2019, bank statements for accounts in the applicants name, four employer references from the applicants current place of employment, an email from Western Australia Institute of Further Studies to the applicant, a media statement for the need for nurses in Victoria and media articles on the shortage of nurses in Australia, a copy of the report, titled Health Work force Australia 2014, Australia’s Future Workforce – Nurses, detailed report of August 2014. The representative also submitted a link to the Department of Home Affairs website which advised that full-time work is permitted to certain visa holders due to the unprecedented COVID-19 situation in Australia.
In the applicant’s statutory declaration declared on 12 September 2020, the applicant stated that she is a registered nurse and has work rights in Australia and that she has savings in her bank account and provided evidence of the amount to the Tribunal. The applicant stated that she is currently enrolled in a Diploma of Community Services and has received a letter of offer for an Advanced Diploma of Community Services and will be completed both courses in June 2022.
The applicant further stated that her uncle who provided her with his bank documents is a businessman with several investments in Kampala, Uganda and worked in the construction industry. The applicant submitted that to her, her uncle was a rich man in society, and he was always interested in the progress of her study and that she was becoming a registered nurse. As her parents had passed away, the applicant submits that it was natural for her to trust her uncle to provide financial support for her student visa application. The applicant asked her uncle over the phone and he sent his bank balance statements to her and she attached them to her student visa application. The applicant states that she relied upon the information provided by her uncle and assumed it was authentic information. After the Department Officer contacted her regarding the authenticity of the bank balance statements, the applicant contacted her uncle and questioned him about his bank balance and her uncle explained that he had used the money for his construction work. The applicant submits that she was “caught unaware” and had no malicious intention to provide a bogus financial document.
The applicant’s representative submitted in written submissions dated 14 September 2020 that the applicant was raised by an aunt and uncle as her parents passed away when she was 12 years old and she knew that her uncle was a builder and asked him for financial support for her student visa application. The representative referred to Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 24, where the court held that to refuse on the basis of PIC 4020 it was necessary that the information or document have the quality of “purposeful falsity”. The representative also referred to Singh v Minister for Immigration & Anor (2016) FCCA 774 and considered it significant for the principle that when an applicant puts forward a claim that is misleading that would otherwise result in the applicant of PIC 4020 but was the product of innocent or an unintentional mistake, the Tribunal has an obligation to assess the merits of that claim.
The representative submitted that the applicant’s innocence must be considered as she inadvertently submitted the document without any knowledge and not knowing that the document was bogus.
The applicant advised the Tribunal she currently resided in Western Australia as the holder of a Bridging Visa A with full work and study rights. She advised she commenced casual employment as a registered nurse at the Amana Living, as aged care facility in Kalgoorlie WA. She started work on 8 August 2020 as a temporary replacement because of the resignation of a previous registered nurse and was working between 23 and 50 hours per week, mostly on night shift. She advised she was not an Australian citizen or PR. She advised her employment was temporary, casual and ongoing and would continue she thought until permanent registered nurses were able to be retained by the facility. Her home was in Bayswater, WA and her son lived in Uganda. She advised her parents died when she was 11/12 years of age and had been brought up by her mothers’ sister. She advised her sponsor was a Mr Musaazi Isaac. She described him as an uncle although he was not a blood relative. He played a minimal role in her upbringing. She apologised for providing a bogus document and advised it had been provided by mistake.
The Service Manager for the Kalgoorlie establishment advised the applicant answered a call to fill a temporary vacancy caused by resignation and high turnover of registered nurse staff. She advised the facility provided a 24 hours servicer and the applicant largely worked night shift. She advised the facility ws actively looking for replacement registered nurses to fill vacancies. She advised there was a shortage of skilled labour. She advised the incidence of Covid-19 in WA was minimal, non-existent in Kalgoorlie and there was no community transmission of Covid-19 in WA.
The Care-Coordinator and Clinical Nurse also gave evidence to the Tribunal. She advised she was the head of the clinical team and the facility in Kalgoorlie was 89 beds and provided both high and low care. She advised there was a shortage of registered nurses in Kalgoorlie and her facility relied on agency staff to work in Kalgoorlie. She advised the facility was actively looking to fill vacancies.
Delegate’s Decision
The delegate made a set of findings. The Tribunal reproduces those findings and background without amendment:
- There is evidence before the Minister that the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application.
- In support of their TU 500 Higher Education student visa application lodged on 22 October 2018, the applicant submitted a letter from United Bank of Africa. The bank letter indicates the account holder is Musaazi Isaac, who the applicant has declared is their uncle who will be supporting them financially during their studies. The letter dated 18 October 2018 indicates that Musaazi Issac, who holds account no. 0280012887, has an account balance as at 13 October 2018 of Uganda Shilling (UGX) 186,337,814.00 which is approximately AUD $68,826. I note that the applicant also provided a Statement of Account from United Bank of Africa dated 18 October 2018. The statement shows Musaazi Isaac’s bank transactions from 16 May 2018 to 13 October 2018 with the last account balance being UGX 186,337,814.60.
- On 13 December 2018, a Departmental Officer from the Australian High Commission, On 13 December 2018, a Departmental Officer from the Australian High Commission, Nairobi emailed United Bank of Africa.
- A response was received from the bank the same day. A representative of the United Bank of Africa stated that the bank account belongs to the said account holder. However, the transactions and balances did not correspond with the bank records and that the statement was not issued by an authorised signatory. The bank representative also added that the current bank balance is not available and that the account holder has not informed the bank of the said sponsorship.
- This information raises serious concerns that the applicant has provided “bogus” documentation in support of their application. The applicant was provided with 28 days to provide comment on the suspected ‘bogus’ documentation supplied to the department.
- I acknowledge the response received from the applicant on 12 January 2019.
- The applicant has provided a statement claiming that they spoken with their uncle who provided the bank statement and that their uncle had advised them the funds were used to finance a building project. The applicant has written that had they submitted the bank statement and transaction accounts on the word of their uncle as they had no way of proving their authenticity. The applicant added they would never had provided the bank documents form their uncle had they known they were falsified.
- In addition, the applicant provided a bank statement in their own name from the National Australia Bank Limited dated 10 January 2019 with a closing balance of AUD $3,615.20.
- I have considered and assessed all the information before me.
- This includes the information provided in the applicant’s higher education student visa application, the results of the departmental investigations and the information the applicant provided in response to the outcome of the investigations. I do not find that the information provided by them allays the concerns held, and I place strong weight on the information obtained during the course of the Departmental investigations.
- Based on the evidence and information before me, I find that the applicant has given or caused to be given a bogus document. Accordingly, I am not satisfied that the applicant meets Public Interest Criterion (PIC) 4020, subclause 4020 (1).

The Tribunal has considered all of the above information. The Tribunal has reviewed all the information on both the Departmental and Tribunal files. This information is quite extensive and detailed. The Tribunal has considered the explanation that the relevant information as outlined above was provided to the Department by way of innocent mistake and the applicant was unaware it was bogus material. The Tribunal notes the applicant has not provided a copy of a statutory declaration or letter of explanation from either her aunty or more importantly her uncle that confirms the provision of bogus information to the applicant. The Tribunal is not satisfied that the provision of information to the Department was inadvertent and submitted without any knowledge and not knowing that the document was bogus.
On 24 September 2020 at the scheduled hearing, the applicant, her representative and the witnesses appeared by telephone.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. They are not defined in the Act. The ordinary meaning of the words apply, and the decision maker is to make an assessment and determine whether the circumstances are compassionate or compelling. The waiver related to compelling circumstances affecting Australia’s interests or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand Citizen. 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.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
In the applicant’s written submission dated 20 July 2020, the applicant requested that the requirements of PIC 4020 be waived as she is a registered nurse with approximately 7 years of experience and has been working in an aged care facility during the COVID-19 pandemic. She provides care for older Australian citizens, is up to date with COVID-19 training and advised her employer that she was prepared to work across a number of organisations should there be a shortage of healthcare staff, the applicant submitted that if there were a need for her to work in Victoria she would contribute.
The applicant in her statutory declaration declared on 12 September 2020, requested that PIC 4020 be waived as she has been working at an aged care facility, Edward Collick Home in Kalgoorlie WA that was experiencing a shortage of registered nurses and her employer requested that the applicant provide assistance at that facility for 3 weeks. Her manager has since requested that she continue to provide assistance due to COVID-19 and made a request to the applicant’s education provider allow the applicant to study online from Kalgoorlie as the Edward Collick Home requires a Registered Nurse onsite. The applicant stated that she has also been offered permanent positions as a registered nurse on several occasions but has declined as she has a bridging visa and has maintained casual employment which allows her to work at various sites that are experiencing a shortage of registered nurses.
The applicant also stated in her statutory declaration that in 2013 she was granted a full scholarship covering tuition fees and living costs in 2013 by the Australian government and completed a Master of Public Health at the University of Adelaide. After completing her Master degree in 2015, the applicant returned to Uganda and continued to work as a registered nurse, she then applied to AHPRA for a skills assessment and was requested to complete a bridging course in nursing for 3 months. The applicant completed the course in 2018 and applied for a skills assessment. She received a positive skills assessment as a registered nurse and then applied to AHPRA and obtained her registration in November 2018. The applicant has since been a registered nurse in Australia, she stated that she applied for this visa to upgrade her skills with a Graduate Diploma in Nursing, The applicant stated that she did not complete this course as it was not adding the value that she thought it would as she had already covered a lot of the topics in her undergraduate studies.
In addition, the applicant’s representative submitted in written submissions dated 14 September 2020, that the applicant has compelling circumstances that affect the interest of Australia due to the unprecedented COVID-19 situation. The applicant has been providing her services as a registered nurse at an aged care facility, which is approximately 600 km way from Perth city and provides nursing and personal care for 80 residents who require a high level of care. The representative also submitted that the applicant has paid tax to the Australian government and is fulfilling her social duties to Australia.
The applicant’s representative also provided the Tribunal with a copy of an email from Western Australia Institute of Further Studies to the applicant regarding studying online and a letter from the applicants place of employment addressing the difficulty of finding healthcare workers in Australia in this time. The representative also provided a link to the Department of Home Affairs website which provides information that Student visa holders who are enrolled in nursing can undertake work to support health officials.
The Tribunal notes the applicant holds a Bridging Visa. She does not hold a Student Visa. A Bridging Visa is not a Student Visa.
The Tribunal invited the applicant to address compassionate or compelling circumstances. In evidence to the Tribunal the applicant advised she became a registered nurse because she was passionate about caring for those in need and the death of her mother had been a motivating factor in her work and study. She advised she thought it paramount that aged care services were provided in Australia and to Australian citizens
The applicant is a highly qualified professional worker. She holds a Bachelor degree in Nursing and a Master degree in Public Health. She has considerable professional experience as a Registered Nurse. She has the necessary professional registration from APHRA issued by the Nursing and Midwifery Board of Australia. She is currently enrolled in VET courses in Community Sector Management. She provided information to the Tribunal that advises she may pursue her studies online.
The applicant advised the Tribunal she was on temporary re-location to an aged care facility in Kalgoorlie. Representatives of the facility advised the Tribunal there were shortages of Registered Nurses in Kalgoorlie, it was difficult to attract and retain these skilled professional workers. The facility was actively seeking to hire the necessary professional workers. Covid-19 had exacerbated a pre-existing labour market problem in Kalgoorlie. These representatives also advised there was zero Covid-19 in Kalgoorlie, its incidence in the remainder of WA was absolutely minimal and there was zero Covid-19 community transmission or spread in WA. The few cases of Covid-19 were basically returnees to WA.
The Tribunal accepts there may currently be difficulties in the hiring of skilled professional workers such as Registered Nurses in Kalgoorlie. The Tribunal accepts the applicant provides a valuable service in Kalgoorlie on a temporary basis. The applicant did not advise of any intention to relocate permanently to Kalgoorlie. The Tribunal also accepts the evidence of the facility representatives that the incidence of Covid-19 is absolutely minimal. However the Tribunal does not accept current and temporary shortages of Registered Nurses in Kalgoorlie and the temporary employment of the applicant on a casual basis warrants a finding there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa.
Therefore the requirements of PIC 4020(1) or (2) should not be waived.
Concluding paragraphs
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.217(1).
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Mark Bishop
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.
…

[2020] AATA 5660

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness