Negri (Migration)

[2018] AATA 1094

Negri (Migration) [2018] AATA 1094 (18 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dominic Mario Negri

VISA APPLICANT:  Ms Tsz Tung Kwok

CASE NUMBER:  1617204

DIBP REFERENCE(S):  OSF2013/028774

MEMBERS:Jan Redfern (Presiding)

Nicola Findson

DATE:18 April 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 18 April 2018 at 4:52pm

CATCHWORDS

Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner) (Provisional) – refusal of visa on grounds applicant does not satisfy Public Interest Criterion 4020 – applicant provided false and misleading information in a material particular in relation to an application for a visitor visa – whether there are compelling or compassionate circumstances that justify waiver of the requirements in Public Interest Criterion 4020 – whether the interests of Australia may be affected by a decision-maker’s failure to provide procedural fairness or follow relevant procedure – compelling circumstances not established – where there are compassionate or compelling circumstances affecting the interests of an Australian citizen – consideration of the circumstances affecting the applicant’s partner including the extended period of separation, impacts of that separation and inability to relocate due to financial and language barriers – factors weigh in favour of the exercise of the discretion to waive – decision set aside and remitted for reconsideration

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulations 1994, rr 1.03, 1.12, Schedule 2, cl 309.225, Schedule 4, PIC 4020

CASES

Kaur v MIBP [2017] FCAFC 184

Plaintiff M64/2015 v MIBP [2015] HCA 50

Raza v Minister for Immigration and Anor [2015] FCCA 1623

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 26 September 2016 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Ms Kwok, is a national of China (HKSAR) born in July 1970. She first travelled to Australia in 2012, at which time she met the sponsor, Mr Negri, who is the review applicant. The applicant applied for a Partner visa on 25 October 2013. The application was refused in March 2015, but remitted by the Tribunal (differently constituted) in February 2016. The delegate again refused to grant the visa in September 2016 on the basis that Ms Kwok did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied she met Public Interest Criterion (PIC) 4020(1) set out in Schedule 4 of the Regulations and was not otherwise satisfied that there were compelling or compassionate circumstances to waive PIC 4020. Mr Negri seeks review of the delegate’s decision.

3. The applicants were represented in relation to the review by their registered migration agent, Mr Estrin.

4. On 15 September 2017, the Tribunal wrote to the Mr Negri pursuant to s.359A and invited him to comment (among other things) on information indicating that Ms Kwok had provided untruthful information in her previous dealings with Departmental officials and that this may cause the Tribunal to find that she had given, or caused to be given, information that was false or misleading in a material particular in relation to either her partner visa application or the Electronic Travel Authority (ETA) she held in the 12 months before the partner visa application was made, and therefore that she does not meet PIC 4020.

5. On 30 October 2017, the Tribunal received a detailed submission from the applicants in response to the Tribunal’s invitation to comment or respond to the adverse information.  It was submitted, among other things, that much of the information put to the applicant in the Tribunal’s invitation relates to an interview conducted with the Consulate-General in Hong Kong on 20 September 2017.  The applicants were dissatisfied with the treatment of the application process and the conduct of staff in the office of the Consulate-General in Hong Kong had been the subject of a complaint to the Commonwealth Ombudsman.  It was further submitted that the information Ms Kwok gave at her interview on 20 September 2016 should be disregarded because of a breach of natural justice.  In the alternative, if the Tribunal was to accept the evidence given by Ms Kwok at her 2016 interview and find that she did provide false and misleading information in a material particular, it was submitted that the requirement in PIC 4020(1) should be waived for ‘compassionate or compelling reasons affecting the interests of an Australian citizen’.

6. Mr Negri appeared before the Tribunal on 14 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Kwok by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicants’ representative, Mr Estrin, also attended the Tribunal hearing.

7. In the course of the hearing, Mr Estrin submitted that, in addition to the matters raised in the written submissions, it was contended the circumstances of the case and the conduct of the Consulate-General staff was so concerning that the requirement in PIC 4020(1) should be waived on the grounds these matters were ‘compelling circumstances that affect the interests of Australia’.

8. The Tribunal has concluded the matter should be remitted for reconsideration. We have found Ms Kwok provided false and misleading information in relation to her visitor visa application in respect of a material particular and therefore does not satisfy PIC 4020(1) in Sch 4 of the Regulations. We reject the contention that this requirement should be waived on the basis of compelling circumstances that affect the interests of Australia but accept that it should be waived in the circumstances of the case for compassionate or compelling reasons affecting the interests of Mr Negri. Our reasons follow.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.309.225 for the grant of the visa. Relevantly, this requires that:

   ·there is no evidence 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).

10. The requirements in PIC 4020 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), which are not relevant to the facts of this case. PIC 4020 is extracted in the attachment to this decision.

11. The issues for determination in this case are whether Ms Kwok has given, or caused to be given, information that is false or misleading in material particular and, if so whether there are compassionate or compelling reasons for this public interest criterion to be waived.

    Has Ms Kwok given, or caused to be given, information that is false or misleading in material particular?

12. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and 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.

13. The requirement in PIC 4020(1) applies whether or not the Minister became aware of the 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.

14. While PIC 4020(1) 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.

15. At the outset of the hearing, it was submitted that, to the extent that the false and misleading information was provided during an interview with the Consulate-General in Hong Kong in September 2016, the manner in which the interview was conducted was such that any information elicited in it should be given no weight and should be disregarded. However, it was also conceded that Ms Kwok provided false and misleading information in relation to a visa she held in the 12 months before the current visa application was made.  Specifically, Ms Kwok admitted that, although she had indicated she intended to come to Australia for tourism purposes in the ETA application lodged in March 2013, she did in fact intend to come to Australia to undertake sex work. As such, there is no dispute Ms Kwok provided false and misleading information in respect of her visitor visa. Nor is there dispute that this information was in respect of a material particular.

16. But for the admission, the interview would have been highly relevant to the question of whether Ms Kwok had provided false and misleading information to the Department. If the issue had been contested, our task would have been to test Ms Kwok’s evidence and form a view about the weight that should be given to the admissions apparently made by her in the Consulate-General interview. Relevantly, it may have been appropriate to give evidence of those admissions little or no weight if we were satisfied, for instance, that the admissions were obtained through undue pressure, misleading information or confusion. However, we have not undertaken this enquiry, at the request of the applicants, and Ms Kwok was therefore not questioned in any detail on these issues other than to confirm she understood the issues being raised by her representative and agreed with the concession.

17. The Tribunal, relying on the admission made by Ms Kwok at the hearing and the interview at the Consulate-General’s office and [details], finds that there is evidence Ms Kwok has given, or caused to be given, to the Minister or an officer, information that is false or misleading in a material particular in relation to a visa that she held in the period of 12 months before the partner visa application was made. We also find that this information was false or misleading in a material particular because it goes to the heart of the purpose of a visitor visa.

18. Accordingly, we find that the applicant does not meet the requirement in PIC 4020(1).

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

19. 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 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.

20. 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.

21. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

    Compelling circumstances that affect the interests of Australia

22. PIC 4020(4) provides that the Minister may waive the requirements of any or all of PIC 4020 if satisfied about certain matters.  There are two limbs to PIC 4020(4). Under the first limb the Minister has discretion to waive the requirements of PIC 4020 if ‘compelling circumstances that affect the interests of Australia justify the granting of the visa’: PIC 4020(4)(a).

23. Mr Estrin submits that the conduct of the Department and the circumstances of the interview by the Consulate-General are such that the Tribunal should find there are compelling circumstances in the interests of Australia to waive PIC 4020 under sub-para (4)(a). It is contended that staff in the office of the Consulate-General who conducted the enquiries and interviews with Ms Kwok did not follow procedural fairness, including s 57 of the Act, which provides for an applicant to be given particulars about adverse information and to be given the opportunity to respond or comment. It is further contended Ms Kwok was not allowed legal representation in the interview process and was not advised about the critical information that was required. It was submitted that to permit such conduct to prevail undermines the integrity of the visa assessment process and the interests of justice more generally. The applicants complained to the Commonwealth Ombudsman who decided not to investigate this issue on the basis Ms Kwok had a right of review to the Tribunal. This decision was not challenged by the applicants. The fact the applicants have not had redress on these issues is said to be sufficiently serious to warrant the Tribunal waiving failure to comply with PIC 4020(1).

24. Without conducting a review of this issue, we accept there may have been procedural errors in the decision-making process as it is not apparent, from our review of the interview notes, that Ms Kwok was given the opportunity to respond to adverse information in accordance with s 57. Notwithstanding this, we reject the contention that this would establish ‘compelling circumstances that affect the interests of Australia’.

25. As observed by Judge Lucev in Raza v Minister for Immigration and Anor [2015] FCCA 1623 at [23], the interests of Australia connote a significant, objective and public interest. This is consistent with department guidelines (PAM3) which suggest that there may be compelling circumstances affecting the interests of Australia if, for instance, Australia’s trade or business opportunities would be adversely affected, Australia’s relationship with a foreign government would be damaged or Australia would miss out on a significant benefit that could contribute to Australia’s business, economic, cultural or other development.[1]

    [1] refer PAM3 – sch 4 – 4020 - The integrity PIC – Compelling and/or compassionate circumstances – compelling circumstances affecting the interests of Australia (reissue date 1/1/18)

26. The contention that the ‘interests of Australia’ may be affected when a statutory decision-maker fails to follow important legislative safeguards in the decision-making process can be accepted as a general proposition. It is hardly controversial that the appropriate and lawful administration of statutory powers and discretions by decision-makers is in the interest of Australia because it promotes confidence and integrity in the relevant decision-making regime.  However, the submission that any deficits, even if they are alleged to be serious, can be characterised as compelling circumstances that would justify a waiver under PIC 4020(4)(a) fails to recognise the role of this Tribunal. The Tribunal must make the correct or preferable decision on the basis of the available information. We must make the decision afresh and while we ‘stand in the shoes’ of the decision-maker, we are not bound by his or her findings or the process adopted by the decision-maker. It is therefore unnecessary for the Tribunal to scrutinise the decision maker’s findings and process to determine whether there is error. The Tribunal may have regard to the decision-maker’s findings in order to understand the key issues, however, those findings are not material or indeed relevant to the role of this Tribunal. In other words, we may agree with the decision of the original decision-maker for the same or different reasons, in which case the Tribunal will affirm a decision under review. Alternative, we may disagree with that decision based on new information provided, a different assessment of the evidence or the different exercise of the discretion. If the decision-making process of the original decision-maker is flawed, the Tribunal may rectify any flawed process or reasoning through merits review. This is part of the normative function of merits review by this Tribunal.

27. Any failure of the staff of the Consulate-General to provide procedural fairness  or to follow the procedure set out in s 57 may call into question the weight that should be given to the interview. As discussed at the hearing, Ms Kwok has the opportunity to give her evidence directly to the Tribunal about the critical issues and the circumstances that resulted in Ms Kwok making certain statements during the interview process. She chose not to do so.

28. While we accept there may have been flaws in the process, we are not bound by those matters. To the extent there are errors, it is for this Tribunal to make the correct or preferable decision on review based on the available information. It is for other government instrumentalities to address errors of conduct by departments through, for instance, internal complaints handling procedures, complaints to the Commonwealth Ombudsman and, in some cases, parliamentary oversight. Is not the role of this Tribunal, nor in our view does PIC 4020(4)(a) contemplate, scrutiny of the process adopted by the original decision-maker to inform its view about the merits of the case. Any errors by the original decision-maker can be considered, and if appropriate, corrected by the Tribunal on review.

29. As such, we do not accept that errors in the original decision-making process, even if serious, are compelling circumstances that affect the interests of Australia to justify the grant of the visa. We therefore reject this submission.

    Compassionate or compelling circumstances that affect the interests of Mr Negri, an Australian citizen

30. The second limb of PIC 4020(4) provides for discretion to waive the PIC 4020 requirements if ‘compassionate or compelling circumstances that affect the interests of an Australian citizen justify the granting of the visa’: PIC 4020(4)(b).

31. There is no dispute Mr Negri is an Australian citizen. Accordingly, the question that arises is whether there are compassionate or compelling circumstances that affect his interests if we refuse to waive PIC 4020(1). The following matters have been raised. 

1. Firstly, it is submitted the considerable delay of over four years in processing the visa application justifies waiver. The delay was partly due to the delegate not being satisfied the visa applicant met the criteria for visa grant.  There was a previous application for review considered that by this Tribunal. This further delayed the processing of the visa application. Unfortunately, delays in visa processing are not uncommon and the mere passage of time, in itself, does not constitute a compassionate or compelling circumstance.

2. Secondly, it is submitted that neither the first delegate nor the previous Tribunal refused the partner visa under PIC 4020(1).  This submission is not persuasive. It is not necessary for the decision-maker to make findings with respect to every criterion. When the delegate found that one of the visa criteria was not met this was sufficient to refuse the application and it was not necessary for the delegate to assess the other criteria. The Tribunal limited its review and findings to the reasons for visa refusal and was not obliged to consider every criterion for the visa grant.  When the matter was remitted to the Department for reconsideration, the delegate was not restricted in making an assessment about any additional criteria and this may be particularly relevant if new information comes to light.  It is also submitted that an application for a subsequent visitor visa made by the visa applicant in July 2016 was not refused under PIC 4020(1). The information which is the subject of dispute in the present application was provided to the Department some three years prior to the application for the second visitor visa and would therefore not fall within the requirement in PIC 4020(1). It is not clear why this is said to be relevant to the present application.

3. Thirdly, it is submitted that Mr Negri is being punished for an application Ms Kwok made four years ago which now significantly impacts upon him.  PIC 4020(1) is not intended as a ‘punishment’. There are important policy considerations behind PIC 4020 which are designed to promote the integrity of the visa assessment process. There is no evidence Mr Negri was involved in providing the false and misleading information and the critical issue is whether his interests are affected to such an extent that it would be compassionate or compelling to waive the PIC 4020(1) requirement. This enquiry is contemplated by PIC 4020(4)(b).

4. The evidence before the Tribunal is that the parties met in February 2012. They married in Hong Kong in August 2013.  Mr Negri told the Tribunal, and we accept, that since Ms Kwok departed Australia in November 2012, he has travelled to Hong Kong two or three times a year to spend time with her. This has been (and continues to be) a significant financial burden on him.  The only other way the parties have been able to provide emotional support to each other has been to maintain contact on a daily basis via ‘We Chat’.  The extended period of separation of the parties in this case is a cause of disappointment, stress and distress to Mr Negri.  He wants to be reunited with his partner of seven years on a permanent basis.

5. Mr Negri says, and we accept, he cannot relocate to Hong Kong without significant hardship.  He does not speak the language and we accept he would find it extremely difficult to obtain employment in Hong Kong. He is a 57 year old self employed plasterer. Mr Negri gave evidence that every time he travels to Hong Kong it costs approximately $900 and $1200 in airfares and he forgoes paid employment. Mr Negri he has a 23 year-old son, who lives with him on a full time basis and who is wholly reliant on his financial support. Mr Negri said he has found it very difficult to reconcile how he might attempt to reunite with his wife overseas as well as continue to care for his son. 

6. We are persuaded that there are compassionate circumstances affecting the review applicant’s interests. If the requirement in PIC 4020(1) is not waived the current partner visa will be refused and, while Mr Negri and Ms Kwok can reapply, any application will be affected by the three year restriction in PIC 4020(2). PIC 4020(2) provides that if a visa has been refused under PIC 4020(1) within three years of an application, a visa may be again refused under PIC 4020(2).  For practical purposes, this means Mr Negri and Ms Kwok will need to delay making any further application until September 2019 to avoid being adversely affected by PIC 4020(2). This is likely to result in further significantly delay. Ms Kwok has already been refused entry to Australia on a visitor visa and it is possible if not likely Mr Negri and Ms Kwok will remain separated for an extended period. We accept, on the evidence before us, that Mr Negri’s emotional health and his finances have been detrimentally impacted by the separation and this will be exacerbated by further delay and separation. We also accept that Mr Negri will be unable to relocate to reside in Ms Kwok’s country of residence and that his financial security and the financial security of his household depends on him remaining in Australia and working.

7. In our view, these matters combined - including Mr Negri’s long term separation from his wife, the impact of that separation and his inability to live in Hong Kong - are sufficient to demonstrate that there are compassionate or compelling circumstances affecting the interests of an Australian citizen.

8. Notwithstanding these findings, the issue of whether we waive the requirement in PIC 4020(1) is discretionary and we must give careful consideration as to how we exercise the discretion in the circumstances of this case.

9. We place significant weight on the requirement in PIC 4020(1) for the reasons previously outlined. It is an important public interest criterion.

10. Against this, we take into account the following:

    (1)There is no evidence to suggest that the relationship between Ms Kwok and Mr Negri is anything other than genuine.  Indeed the Tribunal, differently constituted, previously made a finding to this effect. There is no evidence to the contrary or to the effect that anything has changed.

    (2)If the requirement under PIC 4020(1) is not waived the current visa will be refused and the applicants will be required to make a further application. As already noted, this is likely to result in a further significant delay in the processing of any new application, given the terms of PIC 4020(2).

    (3)There has already been significant delay in the processing of the application and there is no evidence that the initial delays were attributable to the applicants or deficiencies in the original application.

    (4)There is no evidence Mr Negri was involved in or knew of the false and misleading information that was provided by Ms Kwok in respect of another visa. The false and misleading information is not, on its face, relevant to the current application and is not material to the criterion in respect of the current visa, other than to the criteria in PIC 4020(1) itself.

11. On balance, we consider these matters should be determinative.  These matters justify the granting of the visa (for the purposes of cl. 4020(4)) and warrant the exercise of the discretion in PIC 4020 (4) in the applicants’ favour. We have therefore decided to waive the requirements of PIC 4020(1) in this case.

    Has the applicant satisfied the identity requirements?

12. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There was no issue raised about this by the delegate and we do not understand this issue to be controversial. We nonetheless deal with this matter for completeness. 

13. On the evidence before us, when Ms Kwok departed Australia in November 2012 she returned to Hong Kong and legally changed her name by Deed Poll. It was said that this was for superstitious reasons.  There is no evidence to the contrary and there is evidence that Ms Kwok declared her previous names in the extant application. 

14. Accordingly, Ms Kwok’s current and previous names have been declared to the authorities and we are satisfied that the evidence Ms Kwok has submitted satisfactorily proves her identity. 

15. Therefore, the Tribunal finds Ms Kwok meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

16. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 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(2BA).

17. Having regard to all of the evidence before it, there no evidence that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy cl.4020(2A). We also find Ms Kwok was not under 18 at the time the application for the refused visa was made.

18. Therefore PIC 4020(2B) is met.

19. On the basis of the above, we are satisfied that Ms Kwok satisfies PIC 4020 for the purposes of cl.309.225.

    DECISION

20. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

    Jan Redfern
    Deputy President

    Nicola Findson
    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. 

    …