Pan (Migration)

[2020] AATA 1681

Pan (Migration) [2020] AATA 1681 (5 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wenkang Pan

CASE NUMBER:  1807172

DIBP REFERENCE(S):  BCC2016/1658410

MEMBER:De-Anne Kelly

DATE:5 March 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.

Statement made on 05 March 2020 at 1:13pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – applicant gave false or misleading information – the office was not operational – not a genuine need for the position – requirements of PIC 4020(1) are not met and should not be waived – no approved employer nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, s 5, 65, 359
Migration Regulations 1994, rr 1.13, 5.19 Schedule 2, cls 187.213, 187.223, 187.233, 187.242

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
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 on 27 February 2018 to refuse to grant the applicant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 May 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.187.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant gave information that was false or misleading in a material particular and therefore did not meet Public Interest Criteria (PIC) 4020(1).

3. The applicant appeared before the Tribunal on 7 January 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review. The Tribunal heard from one of the directors, Mr Lam, for the nominating employer The Trustee for the 8Ball Garage Unit Trust.

4. The applicant was represented in relation to the review by his registered migration agent Mr Alan Ng (MARN: 1574947) of AE & Associates, although the agent did not attend the hearing. The migration agent at the time of lodging the visa application was Mr Karl Young (MARN: 1171642).

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.187.213 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).

7. 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?

8. 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.

9. 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.

10. 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.

    Extensions of time

11. On 2 December, 2019 the Tribunal sent a letter inviting the applicants to attend a hearing on 7 January, 2020 to give evidence and present arguments. On 6 January, 2020 a request for the hearing to be postponed was received on the basis that the appointed migration agent had suffered an injury while holidaying overseas and was unable to return for the hearing.    The Tribunal noted that applicants are entitled to representation for the purposes of the Tribunal matter but not entitled to specific representation. It was further noted that appointing a representative that is unavailable for the Tribunal hearing after the hearing invitation has been sent out does not warrant a postponement per se, and that the appointment of the representative did not occur until after the incident preventing the representative from attending in person. The Tribunal, in order to facilitate the appearance of the appointed representative, offered the option of a telephone appearance. 

12. On 7 January, 2020 a further request for postponement was received from the registered migration agent on the basis that he was unwell and could not take the hearing by telephone. The Tribunal carefully considered this request but decided not to postpone the hearing since the circumstances were unchanged from those of the original refusal for a postponement. The Tribunal advised that they would attempt to contact the registered migration agent at the commencement of the hearing and if he was unavailable the Tribunal would provide a copy of the hearing audio and allow 14 days following this to provide further submissions and evidence. The Tribunal attempted to telephone the registered migration agent at the commencement of the hearing but the call was not answered.

13. On 20 January, 2020 a request was received for an extension of time for written submissions to 4 February, 2020. The Tribunal granted this extension.

    Documents

14. The migration agent for the applicant was also the migration agent for the employer nomination and as such forwarded documents regarding the employer nomination case to the Tribunal under the case number for the visa application refusal review. Although many of these documents are not germane to this review, the Tribunal has listed some recent documents below for completeness.

    ·Notification and Decision from the Department dated 27 February 2018.

    ·Letter from registered migration agent containing list of documents submitted, dated 4 February, 2020

    ·Trust tax return to 30 June, 2017 and to 30 June, 2018 and draft for 2019 year.

    ·Business Activity Statements covering the period from 1 July, 2017 to 30 September, 2019.

    ·Integrated client account activity statement for the trustee for the 8Ball Garage Unit Trust from 25 July, 2015 to 11 January, 2020.

    ·Lease agreement dated 9 November, 2015 for premises at unit 1B, 40 Loganlea Road, Waterford West QLD 4133 for commencement 9 November, 2015 to 8 November, 2017 at $300 per week plus GST.

    ·Bank statements from 27 July, 2017 to 26 January, 2020.

    ·Letter from Merrotts Chartered Accountants dated 6 February 2020.

    ·Statutory declaration from Mr Shen Fwu Lam co-director of 8Ball Garage Unit Trust dated 4 February, 2020.

    ·Statutory declaration from Mr Wenkang Pan dated 4 February, 2020.

    ·A bundle of documents relating to qualifications for Mr Wenkang Pan.

    ·Letter dated 27 February, 2020 to the Administrative Appeals Tribunal from the registered migration agent, regarding further submission in relation to PIC 4020.

    Background

15. The Trustee for the 8Ball Garage Unit Trust trading as Eightball Media Pty Ltd is located at 729A Stanley Street, Woolloongabba, QLD 4102. The directors are Mr Shen Fwu Lam and Mr Michael Willemse.

16. On 4 May 2016, the company lodged an employer nomination application for a Regional Sponsored Migration Scheme Subclass 187 visa in the direct entry stream for an ICT Support Technician on $50,000 per annum in favour of Mr Wenkang Pan. The employer nomination application stated that the nominated positon was to be located at Unit 1B, 40 Loganlea Road, Waterford West, QLD 4133.

17. Subsequently on the 6 May 2016, the applicant Mr Wenkang Pan lodged a Subclass 187 visa application linked to the employer nomination and under the direct entry Regional Sponsored Migration Scheme (RSMS) visa.

18. On 2 August 2017, Officers of the Department of Home Affairs (formerly known as Department of Immigration and Border Protection) visited the nominating business at Unit 1B, 40 Loganlea Road, Waterford West, QLD 4133. The information received during the site visit and telephone interview with the directors of the business confirmed that the address where the nominated person would be employed was not operational and the premises were found locked with no staff in attendance and lights switched off.   In the RN-187 visa application, the applicant made a declaration to the effect they understood that the visa may be cancelled if the employment did not commence within 6 months after the visa is granted in Australia.

19. The delegate found that false information had been provided by the applicant’s purported future employer, and found that the applicant intentionally misled the Department by declaring that employment was going to be undertaken by him that was not available. The delegate reached a finding that the declaration in the application form stating that the applicant understood that his visa may be cancelled if he does not commence employment within 6 months of arriving in Australia or 6 months after the visa is granted in Australia to be a false or misleading statement in a material particular to the application. The delegate was not satisfied that the applicant meets PIC 4020(1).

20. The website for Eightball Media on the contact tab shows the Waterford West address but in large letters above the address is the advice ‘(by appointment only)’.

21. This was confirmed at the hearing where Mr Lam advised that the office at Waterford West is not open and there are no staff working there. Appointments with clients at Waterford West are by appointment only and then he, his business development manager, account manager and a support person to act as a translator attend the office to meet with the client. There are usually 3 to 4 appointments a month and the duration is from 20 minutes to 1 hour for each appointment.

22. At the hearing, the applicant stated he was not aware that the office was not operational. He had relied on the migration agent at the time, Mr Young, and had signed the visa application documents based on his advice. In his statutory declaration of 4 February, 2020, the applicant stated that the migration agent had never informed him that he would have access to full working rights under the bridging visa. The Tribunal accepted the applicant’s statements that he could not have known the office was not operational and finds that the applicant did not breach PIC 4020(1) for the reasons put forward by the delegate.

    Has the applicant provided information that is false or misleading at the time it is given?

23. However the Tribunal became concerned about evidence the applicant gave at the hearing which was not consistent with documents provided by the employer and on 13 February, 2020 sent a letter under s.359A of the Act inviting the applicant to comment on or respond to the following information:

    During the hearing, you claimed that you were unaware that the Bridging visa A granted to you on the 26 May 2016 carried full work rights once your existing substantive visa ceased and that your migration agent Mr Young had not told you the BVA would enable you to work for your nominating employer. In your statutory declaration of the 4 February 2020 you state as follows; ‘I then spoke to me Migration Agent, Karl Young, and was advised that I should apply for a 187 visa, and I can start working for Mr Lam once I receive my visa. I confirm that at no stage did Mr Young ever inform me that I would have access to full working rights under the BVA’.

    This information was relevant because it went to r.5.19(4)(h)(ii)(B) which provides as follows;
    ‘there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control’. The Tribunal considered that if there was a genuine need for the paid employee then the nominated person would have started work as soon as possible with their nominating employer. However, you provided information that you had never been advised that you had work rights from the grant of the BVA. This was submitted to provide an explanation for not commencing work with the employer and the employer nomination review thus meeting r.5.19(4)(h)(ii)(B). If the Tribunal accepted this explanation, the employer nomination refusal by the Department may be set aside and it may follow that your visa application refusal would be remitted with direction to the Department.

    This information was further relevant, as before the Tribunal is a letter dated 4 August 2017 that was provided to the (then titled) Department of Immigration and Border Protection signed by Mr Shen Lam, the director of your nominating company and entitled ‘Genuine need and pioneering IT services into regional Queensland’. This letter states:

    ‘With the assistance of our migration agent, both us as sponsor and the nominees, Ms Ting Yan Yuen (the nominee) and Mr Wenkang Pan, had agreed that the employment would only commenced [sic] after the grant of visa as there is no mandatory requirement under the law to enforce employment prior to the finalisation of the visa application.’ (Brackets inserted by Tribunal).

    This letter states that the sponsor Mr Lam and you as the nominee agreed that the employment would only commence after the grant of the permanent visa. It indicates that you rather than being poorly advised by your migration agent were aware that your BVA carried full work rights.

    If we rely on this information, we may find that you provided information that is false or misleading in a matter particular in relation to the application for the visa. It would then be open to the Tribunal to find that you do not meet Public Interest Criterion 4020, subject to compelling and compassionate reasons affecting the interests of Australian citizens, permanent residents or eligible New Zealand citizens. If we make this finding, you will not be able to meet cl.187.213(1) of schedule 2 to the regulations, is meeting Public Interest Criterion 4020, is a requirement of that clause. As such the Tribunal would affirm the decision under review.

24. On 27 February, 2020 the registered migration agent made the following submission:

    While Mr Pan did agree that the employment would only commence after the grant of his visa as there is no mandatory requirement under the law to enforce employment prior to him receiving his visa, there is no evidence to suggest that he was aware of his BVA’s full working rights when he had agreed. We reiterate that when Mr Pan had enquired with Mr Young in relation to his ability to work for the employer prior to his visa grant, Mr Young had provided Mr Pan with a vague response that Mr Pan should continue to study to develop his skills until he receives the visa. As Mr Young had never clarified with Mr Pan that Mr Pan had the option to work full time if he chooses to, the advice provided to Mr Pan cannot suggest Mr Pan was aware that he had for working rights under his BVA when he agreed, rather Mr Young’s advice suggested that Mr Pan was still under the assumption he was subjected to his student visas working restrictions… We therefore affirm Mr Pan’s position that at all times he was not aware of his BVA full working rights until his hearing on 7 January, 2020.

25. The Tribunal has considered this submission and disagrees with the statement ‘there is no evidence to suggest that he was aware of his BVA’s full working rights when he had agreed’. As soon as Mr Pan lodged the Subclass 187 visa application on 6 May, 2016, he would have been granted on 6 May 2016 the Bridging visa A (BVA) by way of a letter emailed by the then Department of Immigration and Border Protection titled ‘Notification of Grant of a bridging visa’. These letters state, ‘I wish to advise the decision has been made and a bridging visa has been granted on 6 May, 2016 to each of the applicants listed in the attached bridging visa grant notice (s)’. He  would be advised that the bridging visa would come into effect when his student visa was no longer in effect. The letter would go on to say,

    you can check and email your visa details and conditions at any time using the Visa entitlement verification online (VEVO) system. To access VEVO, you can either use the QR code provided above or visit Permission to work. When your bridging visa (class WA) is in effect you will have full permission to work. (Emphasis added).

26. Although the previous migration agent Mr Young seems to have provided less than satisfactory services it is not plausible to pass all of the blame to him because it is the applicant Mr Pan who has the responsibility to read and comply with documents provided to him or signed by him. Even the most incurious applicant seeing the day approach when their existing substantive visa, in the applicant’s case the student visa, was going to expire would seek to obtain information about their bridging visa and its conditions. Mr Pan had a letter from the Department regarding his bridging visa conditions and he could log on to the VEVO system at any time to confirm his bridging visa conditions.

27. The Tribunal considers it is unreasonable to suggest that from 6 May 2016 when his bridging visa was granted to January 2020 or some 3 and a half years later that the applicant remained unaware of his visa conditions and full working rights. It follows that at the hearing he provided false and misleading information when he advised that he was unaware that he had full work rights. This was relevant to the criteria the Tribunal considered when making a decision on whether the employer nomination met r.5.19(4)(h)(ii)(B) of the Regulations, which requires the employer to have a ‘genuine need’ for the paid employee. The Tribunal considers that if a nominee has full work rights and the employer neglects to fill the position with the nominee for up to 3 and a half years then there is not a genuine need for the position. Had the Tribunal accepted this false and misleading information from the applicant it may have found that r.5.19(4)(h)(ii)(B) was met and set aside the employer nomination refusal by the delegate of the Minister. It would then follow that the visa application refusal would be remitted to the Department with the recommendation that the employer nomination was approved and the direction that the Department consider the other criteria for grant of the visa.

1. The Tribunal finds that the applicant provided information at the hearing that is false and misleading at the time it was given and is relevant to the criteria the Tribunal considered when making a decision firstly on the employer nomination review and then the visa application review.

2. Therefore, the applicant does not meet PIC 4020(1).

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

3. 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 of the Regulations), 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.

4. 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.

5. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

6. In his statement of 4 February, 2020 the applicant claims that if PIC 4020 were to be imposed on him:

   I will not be able to apply for a visa for Australia for 3 years. This would be devastating for me as I love Australia and had been enjoying my time spent here studying. I’m currently studying a Masters of IT at QUT will be graduating at the end of this year, and PIC 4020 would mean the end of my education and life in Australia. I would very much like to stay in Australia after my Masters of IT degree so that I may go work here and sightsee places I could not visit as I had been busy studying… I am an innocent party and only followed the advice and information given to me by Mr Lam and Mr Young.

7. In the migration agent submission of 27 February, 2020 he states,

   Mr Pan is a hard-working student who has already invested so much money in his education here in Australia, and Mr Pan is looking to complete his master’s degree this year. It is Mr Pan dream [sic] to be able to stay in Australia and pursue a career in IT after his graduation.

8. The Tribunal has considered the above arguments put forward and acknowledges the disruption and upset that a PIC 4020 condition can create for the applicant. However, the above arguments do not go to 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.

9. During the hearing, Mr Lam, the director of The Trustee for the 8Ball Garage Unit Trust trading as Eightball Media Pty Ltd asked the Tribunal not to impose PIC 4020 on the applicant as it would be detrimental to their future and unfair. In his statutory declaration of 4 February, 2020 Mr Lam states,

   I feel very concerned that a PIC 4020 condition may be imposed on both Mr Pan and Ms Yuen (a separate application) as a result of this application. What could have been the start of the fantastic work relationship with them has unfortunately transpired into the current situation. If the PIC 4020 conditions were to be imposed on to them, me and my businesses reputation may likely be at risk, and as I have been a standing member in Australian society and I have been operating here for over 12 years [sic]. (Brackets added by Tribunal).

10. The Tribunal has considered Mr Lam’s declaration and cannot accept that he would suffer personally or his business reputation would be at risk or suffer as a result of a PIC 4020 condition on a nominee who has never commenced work for his business. Mr Lam’s arguments do not go to 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.

11. There were no references in the hearing or the submissions to the likely impact on the interests of Australia or compassionate or compelling circumstances that would affect the interests of an Australian citizen, an Australian permanent resident or ineligible New Zealand citizen. The applicant did not request an adjournment during the hearing.

12. Therefore the requirements of PIC 4020(1) are not met and should not be waived.

13. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.187.213.

14. The Tribunal has assessed the applicant’s claims under the temporary residence transition stream. Under cl.187.223 the position to which a visa application relates must be nominated and approved under r. 5.19(3) of the Regulations. Since the correlating nomination did not seek to meet the requirements of and was not assessed under r.5.19(3), the applicant does not meet the requirements of cl.187.223.

15. The Tribunal has assessed the applicant’s claims under the agreement stream. As the correlating position was not nominated by an employer in accordance with the labour agreement, the applicant does not meet the requirements of cl.187.242.

    Nomination of a position

16. The Tribunal considered whether the applicant meets cl.187.233(3) which provides as follows:

    (3)      The Minister has approved the nomination.

17. After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision. The Tribunal affirmed the decision on 11 February 2020 to refuse the nomination on the basis the nominator had failed to satisfy r.5.19(4) of the Regulations.

18. On 13 February 2020 under s.359A of the Act the Tribunal sent to Mr Wenkang Pan an invitation to comment or respond to the information that the employer nomination review had been affirmed by the Tribunal. The letter stated that it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination and if the Tribunal relied on this information in making a decision, we may find that the position specified in the visa application is not the subject of an approved nomination. This would mean they do not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review. Mr Wenkang Pan was advised a response should be received by 27 February 2020 or an extension of time could be requested but the request must be made by 27 February 2020.

19. On the 27 February 2020, the migration agent made a response and canvassed a number of matters, but not the fact that there is no approved employer nomination to satisfy cl.187.233(3). The applicant believes he is an ‘innocent party and only followed the advice and information given to me by Mr Lam and Mr Young’. This does not address the fact that there is no approved employer nomination.

20. Since the Tribunal has affirmed the employer nomination decision under review there is no approved nomination to satisfy cl.187.233(3) and the visa applicant therefore does not meet cl.187.233(3).

21. Therefore, cl.187.233 is not met.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.

    De-Anne Kelly
    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. 

    …