Pandey (Migration)

This matter concerned an application for a Subclass 500 Student visa by Ms. Pandey, a national of Nepal. The dispute arose when the Department of Home Affairs identified that the applicant had declared 'No' to a question regarding previous visa refusals or cancellations, when her husband, who was included as a dependent in her application, had in fact had a Tourist Stream (Offshore) FA600 visa application refused on 30 November 2018. The delegate formed the view that the applicant had provided false or misleading information in a material particular, potentially failing to meet Public Interest Criterion (PIC) 4020(1). The Administrative Appeals Tribunal reviewed this decision.

The primary legal issue before the Tribunal was whether the applicant met the requirements of PIC 4020(1) of the Migration Regulations 1994, which prohibits the provision of bogus documents or false or misleading information in relation to a visa application or a previously held visa. The Tribunal was required to consider whether the incorrect answer provided regarding the applicant's husband's visa history constituted false or misleading information in a material particular, and whether the applicant had provided such information, knowingly or unwittingly. The Tribunal also considered the possibility of a waiver under PIC 4020(4) if compelling or compassionate circumstances were present.

The Tribunal reasoned that while the applicant's migration agent had mistakenly answered the question about the husband's visa history, leading to the provision of incorrect information, the applicant herself had subsequently provided a Form 1023 and further statements to correct this error. The Tribunal noted that PIC 4020(1) applies whether or not the information was provided knowingly or unwittingly. However, in light of the applicant's subsequent actions to rectify the error and the explanation provided by her migration agent, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Student (Temporary) (Class TU) visas for reconsideration, with a direction that the first named applicant meets the criteria for PIC 4020 for the purposes of clause 500.217 of Schedule 2 to the Regulations. This allowed the Department to consider the remaining criteria for the grant of the visa.