SHRESTHA (Migration)

SHRESTHA (Migration) [2018] AATA 660 (13 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr PRABEG SHRESTHA
Mrs ALINA SHRESTHA
CASE NUMBER:  1705123
DIBP REFERENCE(S): BCC2012/803507 BCC2015/1574995
MEMBER:Catherine Carney-Orsborn
DATE:13 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Statement made on 13 March 2018 at 11:32am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 487 (Skilled – Regional Sponsored) – Owner of business supported applicant – Close personal ties – Bogus documents – False work references – Conflicting work and study patterns – Inconsistent evidence
LEGISLATION
Migration Act 1958, ss 5, 65, 359A
Migration Regulations 1994, r 1.03 Schedule 2 cl 487.228
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
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 28 February 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 19 July 2015. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.487.228 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not satisfy PIC 4020.
The applicants appeared before the Tribunal on 28 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, employer and previous employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.487.228 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 appeared before the Tribunal to give evidence. The Tribunal also took evidence from the applicant’s wife, Mr Shrestha, his employer in Nepal and his employer in Australia.
The Tribunal explained that it had the Department files before it. It had the submissions supplied by the applicant and had access to the Department’s data bases.
The first named applicant (the applicant) said that he also sent a document from the taxation department in Nepal which showed he was employed. The Tribunal pointed out that in his statements and supporting documents he consistently stated that he paid no tax in Nepal. He responded that the document would show he was clear of all tax.
The applicant gave some background information. He was born in Nepal in August 1979. He arrived in Australia in 2008. He has been on numerous temporary visas since that time. He studied in Nepal and Australia. In July 2012 he applied for a skilled migration visa. He listed his nominated occupation as Motor Mechanic General.
He gave a history of his studies. He studied Business Administration in Nepal and then a Bachelor’s Degree in Business Studies at Tribhuvan University Balkumari College in Nepal. It was a full-time degree he was enrolled in from January 2005 to January 2008. In Australian he studied Certificates and diplomas in automotive Technology and Mechanical Technology.
The Tribunal then asked him about his work history. He said he worked full-time for Auto Goods in Nepal as an assistant mechanic from 2003 to 2008.
The Tribunal asked him about the work he listed on his skilled visa application as a Finance Officer. He said that he worked for a rehabilitation centre as a finance officer in Nepal. He said that he did the accounts for the business. He claimed that he did this work while he studied for his Bachelor degree from September 2002 to September 2004 and September 2006 to April 2008.
He said he had previously been to the Tribunal because the Department found he did not make the points test. He claims the previous Tribunal found that he did make the points test and sent it back to the Department however the Department did not like this and they have claimed he provided non genuine documents.
The Tribunal pointed out that the Department had found that he did not satisfy PIC 4020 as they found he had given a Bogus document with his application for a skilled migration visa.
The Tribunal then discussed the issues before the Department as set out in the Department’s decision which is attached to the application for review. The applicant said he was aware of the issue. The Tribunal explained the inconsistencies between the information he provided and the interview with the person on site (Sanu) at the place he claims he was employed in Nepal as a motor mechanic.
He responded that there were inconsistencies as he was feeling sick and nervous. He said he spoke to the Department delegate however he was not sure of things.
He said he rang the person in Nepal (Sanu) who had spoken to the Department. He said they told him that they could not remember things and that was why there was a mistake. He said that they could not remember what he was paid.
He said he had not been in contact with the workplace in Nepal for five or six years. He said he rang that person (Sanu) after the decision was made and spoke to them. He said he told them what his salary was and how he used to work on a Sunday.
The Tribunal referred to the previous decision made by a differently constituted Tribunal that he made the points test. The Tribunal put to the applicant pursuant to s359A that the decision of the previous differently constituted Tribunal was before the Tribunal. The previous Tribunal found in that decision that he did not have the claimed overseas experience and awarded him no points for that. The decision found that he was working at another organisation at the time he claimed to be working for Auto Goods. The Tribunal explained this was adverse as it could show that he did not have the claimed employment and this would cause it to agree with the Department’s decision that he provided a bogus document. The Tribunal explained that he could seek an adjournment to consider his response.
The applicant adjourned to confer with his representative. He then returned to the hearing and stated that he worked genuinely as a mechanic he said he has submitted letters from his employer and he is a qualified mechanic. He said he has provided evidence to back up his claims.
The Tribunal said that it had some concerns as in his application for a skilled visa he submitted to the Department he had said that he was studying full-time for a Bachelor degree from January 2005 to January 2008. The Tribunal said this was the same period he claims he worked full-time as a mechanic at Auto Goods. The applicant said he only studied for four hours a day and then worked at the Auto Goods at other times.
The Tribunal then said that in his application he stated that he worked as a Finance Officer from September 2006 to April 2008 for another organisation. He responded that he only did occasional work there.
The Tribunal asked why he changed jobs from a finance officer which he had studied, to be a motor mechanic. He said that it was difficult to find a job and his father knew the owner of Auto Goods, his father approached the owner and asked him to help his son. His evidence is that the owner said he would help him. He claims he first worked there as a volunteer and then he was paid a salary from 2003.
The Tribunal then asked him to address whether there were any compelling or compassionate reasons that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen or compelling reasons affecting Australia.
The applicant said he is working in mental Health. He said that he is completing his studies and his most recent assignments. He said that he is highly thought of at work. He helps to allocate staff and helps them. He said he is a good worker and it will be hard to replace him if he leaves. He said it is hard to find a good worker in Northern Territory ( N.T.).
The Tribunal then spoke to the second named applicant the applicant’s wife. She said that she met him in February 2008 and they married two months later. She then came to Australia. The applicant was a mechanic at Auto Goods when she met him. They met at University. She was not sure what he was studying. She was studying something different. The Tribunal asked her to supply more information however she appeared to lack detail and appeared uncertain of her evidence.
The Tribunal spoke to the applicant’s current manager. She said that the applicant has been in their employment for about 10 months. She said the service has spent money training him. She claimed he is a very good employee. She said it is hard to get skilled employees to work in the mental health field.
The Tribunal then telephoned the number provided by the applicant and spoke to a person who identified himself as Mr Pushda Lal Shrestha. Mr Lal Shrestha claims to be the owner of Auto Goods. He said that the applicant’s father approached him and asked if he could find a job for the applicant. He said he knows the applicant’s father as they come from the same area and he is his brother. He claims the applicant started work for him in 2003. He said he did 6-7 hours a day and if there was extra work he did overtime. He said he would work from 11am to 6pm and do overtime if it needed to be done.
The Tribunal asked him about the person at his shop the Department had interviewed in relation to the applicant. He said Sanu Shrestha looked after the shop. He was the shop manager. He keeps the accounts, looked after the money and all the normal transactions. He claims that he did not have accountants he dealt with. He said that he has dealt with an auditor in relation to tax and other issues.
The Tribunal asked if he has an accountant he said he did not. He said he used an auditor for any matters he needed to such as taxation. He named the business he uses. He said that applicant was paid a salary and tax was then paid. The Tribunal then stated that the applicant says he did not pay any tax as he earnt below a certain amount. The witness then said he might have paid a little tax. He then repeated the applicant’s evidence that he was paid below the amount that was necessary to pay tax.
The Tribunal asked the applicant if there was anything he wanted to say about Mr Shrestha’s evidence. He said that the owner forgot that he worked as a volunteer for Auto Goods for a period before 2003. He said he had a letter from the auditor to prove he worked.
The Tribunal then indicated that there were substantial inconsistencies in the evidence given by Mr Shrestha who claims to be his employer. The Tribunal had concerns and put to the applicant pursuant to s359A that the letter he provided to the Tribunal which he claimed was from the Accountant for Auto Goods was not the name or firm that Mr Shrestha said was his auditor or accountant. Mr Shrestha claimed that Sanu (the person who spoke to the Department in Nepal) looked after the wages and books and he used an auditor. The name he gave of his auditor was different to the name on the letter head of the letter the applicant provided.
The Tribunal indicated why it was adverse and stated he could adjourn to consider his response.
The applicant elected to respond at the hearing. He said Mr Sanu looked after the money. He said he supplied a letter from the auditor and he has provided proof of working. He further said he supplied a letter from the Taxation Department in Nepal to show he worked and owed no tax.
The Tribunal then said words to the effect that there was general country information from DFAT Nepal 2016 which indicated that false official documents can be obtained.
A black market exists for citizenship certificates and other official documents in Nepal and can be obtained with the appropriate contacts and financial resources. Government officials may ‘sell’ citizenship certificates and Nepalis with citizenship certificates may also provide misleading or false information in support of other people’s applications. The Prevention of Corruption Act (2003) established the Committee for the Investigation of the Abuse of Authority, which has jurisdiction over cases of fraudulent identity documents involving corruption among public officials. DFAT is also aware of reports of commercial banks issuing fake bank loan papers for use in various processes, including migration applications.
The applicant provided submissions and documents which he claims show he worked full-time as a motor mechanic at Auto Goods in Nepal from 2003 to 2008.
When it was put to him that a site visit conducted by a delegate from the Department to Auto goods was conducted the person who was identified as the shop manager (Sanu) gave inconsistent information from the applicant on his working conditions, pay and other staff.
When queried on this, the applicant stated that the person at the front desk was simply a receptionist. At hearing he stated he had not spoken to the person at the front desk who was a receptionist for five or six years, he claimed their employment overlapped by two years. He then stated that he immediately rang that person (Sanu) after the decision was made and queried why he had given that information. He claims (Sanu) said he could not remember what was said. He gave information to Sanu of what he believed was the correct answers.
In his written submissions he went into more detail. He said that he was unwell when the delegate from the Department interviewed him. He said he was driving his car on his way home and pulled over to take the phone call. He claimed that there was loud traffic, bad reception and he was unwell when he gave the inconsistent answers. He supplied a written statement from Sanu who was the person interviewed at the work site. In that written statement Sanu gave a version that was consistent with the version given by the applicant. He stated that he works in a busy noisy area and this would account for the inconsistencies.
In the interview with the Department’s delegate the applicant did not know the name of staff members or the name of the Head mechanic.
The Tribunal would expect that someone who claims to have worked for a business from 2003 to 2008 would have been able to name key staff. He was not able to answer simple questions about when he was paid and how much. In response to concerns about inconsistencies he provided another version in writing from (Sanu) which matched his evidence.
He then claims that his evidence was inconsistent as he was suffering from ill health and there were traffic noises. The applicant has not provided any medical evidence to show he suffered from ill health at the time of his interview. There was nothing in the Department file to show that there were problems with traffic noises or reception.
The questions asked were not complex or difficult questions the Tribunal considers he would have been able to answer such questions given his claimed long period of employment with Auto Goods.
He provided written evidence from the owner of the business Mr Pushda Lal Shrestha. At hearing he stated that the owner was a friend of his father and his father asked the owner to help him. The Tribunal notes that the owner of the business has the same surname as the applicant and Sanu. The applicant said they were not related however came from the same area. At hearing the owner gave oral evidence to the Tribunal he stated that he called the applicant’s father brother and agreed they came from the same area and had the same surname. He said the father asked for his help.
The owner said that the person who took the call was the shop manager and looked after all the money (Sanu). The applicant at hearing changed his evidence from the person who took the call being just the receptionist to agreeing that this person looked after all the money. The Tribunal does not accept that this person was just a receptionist and made mistakes in relation to when the applicant worked and his conditions. The Tribunal expects that someone who looks after all the money would know the basic entitlements the applicant was paid and the working conditions.
The applicant provided a statement dated July 2015 on a photocopied letter head purporting to be chartered accountants. In that statement they claimed that Auto Goods was their client, they had access to their records and that the applicant had been employed at Auto Mechanic from August 2003 to September 2008. They said his employment was full time permanent and he worked a minimum of 38 hours per week. At hearing the Tribunal asked the owner of Auto Mechanics who their accountant was. The owner said that Sanu (the person interviewed in the site visit) looked after the accounts and all the normal transactions. He named a firm and spelled their name as auditors. This was a different name to the name on the document provided to the Tribunal by the applicant from persons the applicant claims are Auto Goods accountants and supported his claim of working at Auto Goods. The Tribunal put this to the applicant pursuant to s359A and explained he could adjourn to consider his reply he elected to reply at the hearing. He responded that he provided the letter from the auditor.

After the hearing the applicant sought further time to respond to the concerns put to the applicant at hearing. The Tribunal allowed this further time. After the hearing the applicant supplied the following documents.
·A translation of the letter from the Inland Revenue Department of Nepal,
·A letter from ‘Easy Accounting Service” this letter stated that they do an audit and prepare accounts for Auto Goods and then submit them to Rajan Adhikari and Association who are chartered accounts for their checking
·A letter from “Rajan Adhikari & Associates chartered Accountants which states they are the chartered accounts who are certifying the accounts/financials for Auto Goods after they are audited and prepared by Easy Accounting Services.
·A Statement from Pushpa Lal Shrestha who identifies himself as the owner of Auto Goods and the person who gave evidence at the hearing on the phone from Nepal. He addresses the difficulties that the Tribunal had to locating him in Nepal via phone. The statement states that Easy Accounting service does the audit of accounts and Rajan Adhikari & Associates Chartered Accountants does the checking the certify go the accounts and Sonu does the daily sale purchase accounts.
There is nothing in those documents to explain why the person the Tribunal took evidence from who claimed to be the owner of the business could not name the Accountants who earlier in documents and statements had been identified as the Accountants of the business. Nor does it explain in a persuasive manner why Sanu who has been identified as the person who does accounts by the owner, could not answer basic questions about the applicant’s pay or hours of work. The Tribunal conducted a general web search under the site for chartered Accountants and auditors in Chitwan Nepal neither name on the documents provided appeared in that list in an official site.
The applicant provided, after the hearing, a translated document which he claims is a translation of the Letter from the Ministry of Finance, Inland Revenue Department in Nepal. This letter reads like a reference and states that the applicant worked with Auto Goods and owes no tax. This letter says he owes no tax it does not address the inconsistencies of the applicant stating he earned less than the taxable amount and paid no tax and his employer saying he paid some tax at hearing then when queried by the Tribunal changing his evidence.
The owner of the business said that the auditor looked after matters such as tax paid by the applicant, when the Tribunal put to the owner that the applicant said he paid no tax he changed his evidence to say that he was not sure if he paid tax.
The owner of the business claimed that the applicant worked for him full-time as a mechanic. The applicant provided documents which purported to be from accountants, statements from Sanu and statements from himself. The Tribunal has considered all those documents.
The Tribunal does not accept that the applicant worked for Auto Goods. The Tribunal has before it the inconsistent evidence provided by Sanu (the shop manager), documents which claim to be from an accountant which the owner did not name as his accountant, several letters which purport to be from the owner of the business and a document in Nepalese which the applicant states is from the taxation department and translated.
The applicant on his application for a skilled visa lists his education and employment in Nepal. In that application he states he was doing a full-time bachelor degree course at University in Nepal and working as a finance officer for a business at the same time he has provided documents asserting he worked full time including overtime in his nominated occupation as a motor mechanic at Auto Goods.
When this was put to the applicant at the hearing. He responded that he only went to University for a few hours and then did the other work part-time and was able to work full-time and do overtime at Auto Goods. The Tribunal does not accept this. In his application he did not list the work as a Finance Officer while he studied full-time for a Bachelor of Business Studies as part-time work.
The Tribunal has considered the evidence provided by the owner of the business and letters purported to be from him stating that the applicant was employed full-time as a motor mechanic however given the numerous inconsistencies and unpersuasive responses to the Tribunals concerns it does not accept the applicant was employed full-time at the business during the period claimed. The Tribunal has formed the opinion that the owner of the business was supporting the applicant in his quest for a visa as he considers the applicant’s father his brother.
Further the applicant gave inconsistent evidence about his job. He had earlier claimed he paid no tax and had no payslips however he later provided a letter he claimed was from the business’ accountant which said they considered the business’ records. This was from an accountant firm the owner did not name at the hearing as his auditors or accountants. He did not explain how he could claim earlier there were no records as he paid no tax then provide an accountants letter claiming they inspected the records and her worked at the business.
After considering all the evidence before the Tribunal and the oral evidence provided by the applicant and the owner of the business the Tribunal finds that the applicant has not been truthful.
The Tribunal finds that the applicant has supplied bogus documents and misleading and false information to the Department and the Tribunal. The Tribunal finds that the work references were bogus. The Tribunal finds that information that is false and misleading in relation to the applicant’s work experience in Nepal was given to the Department and Tribunal.
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.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
The applicant provided letters and references from his current employer in Australia. His manager attended the hearing to give evidence on his behalf.
The manager stated that he was a good employee. She found him to be hard working. She stated that the business had invested in him and trained him. She said it is hard to get employees in the N.T.
He said he is currently studying a certificate IV in Mental Health. He states he has been in Australia ten years and wants to stay and bring his daughter out from Nepal.
Reference letters were provided from the second named applicant’s clients. They were supportive of her.
The Tribunal accepts the evidence that the applicants have been good employees in the work they have undertaken in N.T.
The Tribunal further accepts they want to stay in Australia however the Tribunal does not find that the above are compelling circumstances that affect the interests of Australia.
The businesses which employ them would continue to operate if the applicants resigned and went to other work. The applicant has already changed his occupation from finance officer to motor mechanic and more recently to caring services as he claims he has a passion to serve the community he further states that the working conditions were better.
The applicant has only been employed at the community services for ten months and the service would have to continue if the applicant, as most employees can do, moved to another employer with better conditions.
After considering all the above the Tribunal is not satisfied that any circumstances exist which affect the interests of Australia.
The second named applicant’s clients provided letters that claim they would be sad to see her go. She has already relocated from Melbourne to Northern Territory for better prospects. The Tribunal accepts that they would miss her if she was to leave but in the ordinary course of life she would be free to pursue other and better employment opportunities.
The Tribunal is not satisfied on the evidence that any compassionate or compelling circumstances exist that affect the interests of Australia citizens, permanent residents or eligible New Zealand citizens.
The Tribunal is not satisfied that the any circumstances exist that justify the granting of the visa and waiving the requirements.
Therefore the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.487.228.
There is nothing before the Tribunal to indicate that the applicant meets the criteria for any other subclass within the class of visa sought.
DECISION
The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Catherine Carney-Orsborn
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.
…

[2018] AATA 660

13 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice