REGAN (Migration)

REGAN (Migration) [2020] AATA 5424 (18 December 2020)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Brian REGAN
Miss Sinead Marie CONDON
CASE NUMBER:  1820809
DIBP REFERENCE(S):  BCC2017/132785
MEMBER:John Cipolla
DATE OF DECISION:  18 December 2020
DATE CORRIGENDUM
SIGNED:18 January 2021
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:
The sentence on the decision cover page reading ‘Statement made on 18 December 2019’ should instead read ‘Statement made on 18 December 2020’.

John Cipolla
Senior Member
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Brian Regan
Miss Sinead Marie Condon
CASE NUMBER:  1820809
DIBP REFERENCE(S):  BCC2017/132785
MEMBER:John Cipolla
DATE:18 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
·Public Interest Criterion 4020 for the purposes of cl.186.213(1) of Schedule 2 to the Regulations.

Statement made on 18 December 2019 at 6:17pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – false or misleading information – character test – omission of criminal convictions in Ireland – provided a Form 1023 to remedy omission – waiver of requirement – compassionate or compelling circumstances that affect the interests of an Australian citizen business owner – significant contribution to a large Australian business – unique skill set in an area of skill shortages – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.213; Schedule 4, PIC 4020
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
Trivedi v MIBP [2014] FCAFC 42
Vyas v Minister of Immigration and Citizenship [2012] FMCA 92

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 12 July 2018 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 11 January 2017. The delegate refused to grant the visas on the basis that the first named applicant (hereinafter referred to as the applicant) did not satisfy the requirements of cl.186.213(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant had not met PIC 4020. This requires that no evidence is 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 the Subclass 186 application made by the applicant on 11 January 2017 the applicant when completing questions pertaining to character advised that he had not been convicted of any criminal offences. The applicant attempted to remedy this on 3 May 2017 when he submitted a correction to the Department via a Form 1023 to the Department indicating that this was incorrect and that he had received convictions in Ireland for drug related offences in 2008. On 4 May 2017 the applicant lodged a further document with the Department called a Statement of Events, which contained a police conviction list, pertaining to his convictions for drug related offences in May and September of 2008, which occurred when the applicant was 18, and resulted in the imposition of a community service order.
On 8 October the applicant provided the Department with a completed form 80 Character Assessment form and claims to have inadvertently omitted to list the convictions in this form. The applicant advised that the form was a long form to complete and that the omission was inadvertent and not deliberate.
The delegate indicated that for the Subclass 457 visa, whose term overlapped with the EN 186 application, the EN 186 application itself, and in the Form 80, the applicant had provided false and misleading information in contravention of PIC 4020.
The delegate put this information to the applicant to comment on in a natural justice letter and the applicant provided a comprehensive response to this letter.
In the response dated 17 January 2018 the applicant's representative stated that the applicant misunderstood the 457 and 186 application questions, believing that a conviction did not equate to a community service order or a fine. The submission noted that when the applicant was cognisant of the fact that this was an omission, he provided a Form 1023 to remedy this. Furthermore, reference was made to the case of Vyas v Minister of Immigration and Citizenship [2012] FMCA 92, which stated that the non-disclosure of the criminal convictions did not interfere with the substance of the application, as advice from the Departmental Visa Applicant Character Consideration Unit (VACCU) had indicated that the right to refuse under s501 would be waived in this instance. The submission made extensive reference to the respective hardships experienced by the applicant prior to, and at the time of his convictions, and with regard to the personal development undergone by the applicant following his convictions, and a number of references were provided in support of the good character and conduct of the secondary applicant. Character references were also provided with respect to the history, personal development and contributions of the applicant to the Australian community.
The delegate concluded that PIC 4020 applied in this case and having regard to the limited grounds to waive PIC 4020 that waiver should not apply in this case. The application was refused accordingly under 186.213(1).
The applicant appeared before the Tribunal on 17 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the secondary visa applicant, and applicants partner Sinead Condon, the applicant’s sister who is an Australian permanent resident Ashley Marie Regan, Sash Krstevski the applicant’s employer and Keith Donnelly, a friend of the applicant.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
At the outset of the review the Tribunal explained the respective issues in the review. The Tribunal noted that it had regard to the evidence before the Department, submissions made by the applicant to the Department, submissions made to the Tribunal at review and that it would duly consider evidence provided by the applicant and his witnesses at hearing.
The applicant provided his personal details. The applicant advised that he was born in Ireland. The Tribunal asked the applicant about his travel history prior to coming to Australia. The applicant stated that he had visited Portugal and Holland and that in 2011 he undertook a visit to Kenya in Africa to undertake 10 days of voluntary work with an orphanage. The applicant stated that the voluntary group transported a number of children, from Nairobi, to Mombasa where they spent 10 days by the ocean. The applicant advised that these children had never seen the ocean and that the experience was one of the most valuable experiences of his life.
The applicant stated that he grew up in Cork in Ireland, an area with significant levels of unemployment. The applicant stated that he lost three close friends to suicide, all were young, and the deaths had a profound impact him.
The applicant advised that he first came to Australia in 2012 as the holder of a Subclass 417 Working Holiday visa. The applicant stated that he undertook the requisite remote work in Grenfell in NSW working as a sheep shearer. The applicant then successfully applied for a second Subclass 417 Working Holiday visa.
In 2014 the applicant successfully applied for a Subclass 457 visa sponsored by a large Australian company Wideform Pty Ltd to work as a Form Worker. The Tribunal asked the applicant about the company. The applicant stated that the company employed in excess of 300 people and worked on many large infrastructure projects. The applicant stated that initially he commenced work as a Form Worker and had worked himself up to team leader level supervising a large number of staff in the construction of formwork, particularly in multi-storey constructions that required high levels of experience and adherence to safety requirements. The applicant stated that he had developed good working relationships with his colleagues and with his employer and had made steady progress over time. The applicant stated that as a consequence of his skills and success in the position, that his employer agreed to sponsor him for a Subclass 186 Visa. The applicant believed that he made a valuable contribution to the work of his employer in his supervisory role, in disseminating information to less experienced workers and in meeting an identified skill shortage.
The applicant advised that he and his partner had been involved in voluntary work with the mental health team attached to Prince of Wales Hospital in Randwick. The applicant advised that he was involved in sorting and collating clothing for patients with a mental illness who could not afford new clothes an initiative that had been very successful.
The Tribunal noted that it had regard to the applicant’s criminal record in Ireland pertaining to drug-related offences in 2008 when he was 18 years old. The applicant stated that evidence had been provided to the Department and to the Tribunal pertaining to the circumstances surrounding that offending. The applicant stated that his family life was dysfunctional as his father suffered from alcoholism and was violent. The applicant stated that these offences were a one off and were reflective of the circumstances of his life at the time. The applicant stated that in the intervening 12 years he had no interaction with the criminal justice system and his life had gone from strength to strength since he had relocated to Australia and re-established a life for himself in this country.
The Tribunal took evidence from the applicant’s partner Sinead Condon. The witness stated that she had travelled to Australia with the applicant in 2012 and that she and the applicant had now been residing in Australia for eight years. The witness advised that she too worked in the construction industry providing high-rise access to workers on construction sites and she had also worked previously in traffic control. She advised that she had one adverse interaction with the criminal justice system as a result of a random breath test in 2015 at which time she recorded a high range prescribed concentration of alcohol. As a consequence, she lost her license, for one year, and was fined $1200. The witness advised that as a consequence of this incident she enrolled in a course for persons that had been convicted of drink-driving which dealt with the consequences of drink-driving, accidents that resulted due to drink-driving, and a course in which victims of a drunk drivers addressed the group. The witness stated that she had no further interaction with the criminal justice system and that she had benefited from her attendance in the course. The witness advised that the applicant was very hard-working, that he was a valued employee of Wideform Pty Ltd and that he had significantly progressed in the business during his employment. She advised the Tribunal that the applicant made a valuable contribution to the work of his employer and that if his visa was refused it would have a substantial impact on an Australian business, particularly given that there was skill shortage of experienced Form Workers in Australia.
The Tribunal took evidence from the applicant’s sister Aishling Regan. The witness advised that she was extremely close to her brother. The witness advised that she was an Australian permanent resident and that her partner was an Australian citizen and that they had a 2 year old son. She advised that she worked as a Wool Classer in Young in NSW. The witness advised that her brother’s interaction with the criminal justice system was attributable to poor family circumstances and social circumstances that existed at the time along with his youth. She advised that her brother completed a community service order and since that time had no interaction with the criminal justice system. She advised the Tribunal that since her brother and his partner had relocated to Australia that his life and career had gone from strength to strength. She advised that her brother and his partner Sinead were the closest family that she had in Australia and that her brother was the godfather to her son. She advised that because of the strong bond that she has with her brother that the refusal of his visa would have a substantial impact upon her and her partner and their son due to the closeness of their familial relationship.
The Tribunal took evidence from Mr Keith Donnelly a friend of the applicant and his partner Ms Condon. The witness advised that met the applicant through his partner Sinead. He advised that he was a Clinical Nurse Specialist and that he worked at Prince of Wales Hospital in Randwick with acutely unwell patients. He advised that he had commenced an initiative at the hospital known as Keith’s Closet, whereby clothes were donated and passed on to patients of the hospital who often were itinerant and not able to afford new clothing for themselves. This meant that if a patient was being presented to the Mental Health Review Tribunal that they could be dressed in appropriate attire for their presentation. The witness stated that both the applicant and his partner were extensively involved in this initiative and had made a valuable contribution to the initiative. The witness stated that the applicant was a person of integrity and that he was hard-working and industrious.
The Tribunal took evidence from Mr Sash Krstevski the applicant’s employer since 2014. The witness advised that there was a considerable skill shortage of Form Workers in Australia. The witness advised that as a result of COVID-19 state governments and the federal government were investing significantly in large infrastructure projects. The witness stated that his business was involved in large-scale urban construction projects that included the extension of Campbelltown Hospital, the substantial extension to the Prince of Wales Randwick Hospital campus, the refurbishment of infrastructure for military personnel at Watsons Bay, and to the Metro Station being constructed in Martin Place and Crows Nest in Sydney. The witness advised that his business employed in excess of 300 people. He advised that his business had employed a large number of Form Workers on 457 and Subclass 482 visas in the past. He advised that he had employed 30 Form Workers from Portugal, along with a number of Italian form workers. The witness advised that it had been very difficult to recruit Australian Form Workers despite extensive online advertising campaigns, confirming the skill shortage in this area of employment. He also advised that Form Workers he had engaged from overseas had good technical skills something that was more deficient in Australia due to the lack of funding to the technical education sector. The witness further advised that he had also employed a design engineer from the Philippines who had proved to be an asset to the business. The witness stated that 2020, due to COVID-19, had been a challenging year. Those challenges were exacerbated by the fact that the migrant tap had been turned off by government, due to COVID-19 resulting in difficulties in obtaining overseas workers to fill skill shortages in the business. The witness stated that he was committed to engaging a large number of apprentices in the business and had an expectation that 2020 would be a good opportunity to obtain a large number of apprentices. He advised that he had managed to attract 15 apprentices who would be starting with the business in 2021. The witness advised that the applicant had been working for him since 2014 and was a valuable employee who was extremely experienced in formwork and oversaw staff, providing training and support particularly around safety issues working at a great height. The witness stated that the loss of the applicant would be a significant one impacting adversely on the business which needed to retain experienced Form Workers due to the breadth of major infrastructure projects that the company was currently involved with.
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.186.213 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).
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.

The applicant concedes that he did omit to provide information pertaining to his history of criminal convictions in his Subclass 457 visa application and that as a consequence he is caught out by PIC 4020(1).
The Tribunal finds on the basis of the evidence before it that the applicant, by failing to disclose his criminal history in his Subclass 457 visa application, that the omission is information that is false or misleading in a material particular as defined in PIC 4020(5).
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. 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.
Taking into account the case law, what amounts to ‘compassionate or compelling circumstances' in each case is a question of fact, having regard to all the circumstances of the particular case.
In the absence of specific legal definitions, the Department’s Procedures Advice Manual, PAM3 recommends consideration of the ordinary everyday meaning of the phrase.
The Tribunal also notes that according to the Macquarie Dictionary Online the term 'compelling' is defined to mean: “1. demanding attention or interest…2. convincing: a compelling argument”. It defines ‘compassionate’ to mean: “1. having or showing compassion. 2. on the grounds of compassion: compassionate leave…4. to have compassion for; pity”.
Although the Tribunal is not bound by policy, it has had regard to the elements emphasised in PAM3 in terms of the exercise of discretion. In particular, the policy guidelines in 'Sch4/ 4020 - The Integrity PIC’ state the following in respect of compelling and/compassionate circumstances: 37 Compelling and/or compassionate circumstances… 37.2 Compelling circumstances affecting the interests of Australia 4020(4)(a) … There may be compelling circumstances affecting the interests of Australia if: · Australia's trade or business opportunities would be adversely affected were the person not granted the visa (Note: under policy gaining employer sponsorship is not considered sufficient grounds for a waiver); · Australia's relationship with a foreign government would be damaged were the person not granted the visa; or · Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.
It is Departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances if the non-citizen merely claims that, if granted the visa, they would: · work and pay taxes in Australia or · pay fees to an education provider or · spend money in Australia. 37.3 Compassionate or compelling circumstances affecting the interests of an Australian resident, permanent resident or eligible New Zealand citizen 4020(4)(b) … The circumstances for consideration must be of compassionate or compelling nature in the way they affect the Australian citizen, permanent resident, or eligible New Zealand citizen. Compassionate or compelling circumstances that affect the applicant are not relevant for consideration unless they also directly affect an Australian citizen, permanent resident or eligible New Zealand citizen. The wording of PIC 4020(4)(b) requires that either compassionate or compelling circumstances exist that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen. To waive the requirements of any or all of PIC 4020 (1) and/or (2), the applicant's claims must have a compelling or compassionate element particular to that individual case that are beyond those usually present in that visa caseload.
During the review the applicant provided evidence about the nature of the offending and the circumstances that led to that offending. The applicant has also provided considerable evidence pertaining to his offending to the Department and pertaining to the omission of his criminal conviction in his Subclass 457 visa application and later in the Form 80 accompanying his Subclass 186 application.
The applicant also provided the Tribunal with details of his immigration history in Australia from the time of his arrival in Australia in 2012.
With regard to his work history the applicant advised that he had trained and studied in Ireland as a Carpenter and that he had acquired substantial work experience. The applicant advised that he commenced working for his nominating employer in 2014, commencing as a Form Worker then working his way up to a role with supervisory responsibility that included the mentoring and oversight of fellow workers particularly in the context of worker safety. The applicant is described in multiple references as hard working, skilled and industrious and the applicant has provided references from a number of foremen, overseeing jobs that the applicant has worked on.
The applicant has furnished a large number of testimonials pertaining to his good character from friends and work colleagues in Australia. These testimonials have been duly considered.
The applicant advised at hearing that his employer, Wideform Pty Ltd is a major formwork contracting group in NSW dealing with very large commercial jobs, such as, the construction of the Randwick Heath Campus at Prince of Wales Hospital, the refurbishment of Campbelltown Hospital, construction of all the metro stations at Martin Place and Crows Nest in Sydney and a major infrastructure project at the naval base in Watsons Bay in Sydney.
The Tribunal took evidence from Mr Sash Krstevski, the General Manager of Wideform Pty Ltd. Mr Krstevski advised the Tribunal that because of the applicant’s extensive experience and skill set he was an asset to the business. He described the applicant’s skills in Form Work and substantial on the job knowledge, which he advised was very well suited to the commercial construction industry. He advised that the retention of the applicant was important to the ongoing growth and commercial success of the company. Mr Krstevski also advised that it was very hard to attract competent and committed Form Workers from within Australia.
Mr Krstevski provided an employment reference on behalf of the applicant which is very complimentary of the applicant and his work ethic and skill set.
The applicant gave evidence that he and his partner Sinead have been extensively involved in voluntary community work in Sydney with Keith’s Closet. The Tribunal has received a letter of endorsement which confirms the applicant’s ongoing involvement and commitment to voluntary work with this organisation provided by Mr Keith Donnelly.
The testimony provided by Mr Krstevski from Wideform Pty Ltd clearly establishes the fact that the applicant is making a significant contribution to a large Australian business in NSW, due to the depth of his experience and his substantial skills set as a Form Worker, particularly working in a business with large commercial and government clients. Mr Krstevski has provided compelling evidence about the need to retain someone with the applicant’s skill set and provided evidence both written and oral about how the retention of employees of the calibre of the applicant have led to the growth of the business, the retention of apprentices and the ability to capture more and more significant commercial contracts. This in turn is benefiting the Australian economy, which has been exemplified during the course of the current COVID-19 pandemic.
The Tribunal finds that there are compassionate or compelling circumstances that affect the interests of an Australian citizen business owner and conversely that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa. The evidence indicates that the applicant possesses a unique skill set in an area of skill shortages and is making an invaluable contribution to a significant Australian business and that the business and economic opportunities of Wideform Pty Ltd would be adversely affected if the visa was not granted.
Further to this the Tribunal finds that there exists compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, namely the applicant’s sister Aishling, an Australian permanent resident and her family unit comprising of her Australian citizen husband and Australian citizen son. The evidence indicates that the applicant and his family provide familial support to Aishling and her family and that the absence of the applicant and his partner Sinead would have an adverse impact on this family unit.
Therefore, the Tribunal finds that the requirements of cl.4020(1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
Based on the biodata evidence on the Department's file, the Tribunal is satisfied of the applicant's identity and therefore finds that he meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
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).
There is no evidence before the Tribunal to indicate that the applicant or any family unit member has 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.
Therefore PIC 4020(2B) is met.
decision
The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
Public Interest Criterion 4020 for the purposes of cl.186.213 of Schedule 2 to the Regulations.
John Cipolla
Senior 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 5424

18 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction