Trivedi (Migration)

Trivedi (Migration) [2019] AATA 1314 (11 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Vimalkumar Navinchandra Trivedi
Ms Artiben Vimalkumar Trivedi
Master Krishay Vimalkumar Trivedi
CASE NUMBER:  1705275
DIBP REFERENCE(S):  BCC2016/645695
MEMBER:C. Packer
DATE:11 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 - Skilled - Independent visa:
·Public Interest Criterion 4020 for the purposes of cl.189.215(1) of Schedule 2 to the Regulations.

Statement made on 11 April 2019 at 5:27pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – false or misleading information – past employment overseas – Departmental investigation – telephone interviews – inconsistencies with answers provided by applicant and former employer – not convincing evidence that applicant had made false claims – timing of call – concerns about the caller’s identity – supported by third party evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 189.215; Schedule 4, PIC 4020
CASES
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 2 March 2017 to refuse to grant the applicants Skilled Independent (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 15 February 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.189.215(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found he had provided false or misleading information about his past employment overseas and so did not meet Public Interest Criterion 4020.
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.
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.189.215(1) 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). 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 delegate’s decision discussed the concerns with the applicant’s claimed employment with a business named VTechnology in India from 1 April 2008 to 29 February 2012. In the application the applicant stated he had worked with VTechnology as an application programmer ANZSCO 261311 from 1 April 2008 to 29 February 2012, and he provided several documents ostensibly from VTechnology in support:
·A reference letter dated 20 March 2012, signed by Vishal Shah. This outlined the applicant’s tasks as an application programmer at the business.
·A salary certificate dated 30 April 2015, for the period of 2008 to 2012, that stated the applicant worked under the title of ‘application programmer’ and stated his salary:
oApril 2008 to March 2009: Rs 6000
oApril 2009 to March 2010: Rs 6500
oApril 2010 to March 2011: Rs 7000
oApril 2011 to February 2012: Rs 8000
·A copy of a document “Terms and conditions of employment” at VTechnology for the applicant and signed by the proprietor Vishal Shah on 1 April 2008, and signed by the applicant, and certified a true copy on 5 May 2015.
·An ACS skills assessment dated 12 June 2014, that showed his employment at VTechnology from 4/2008 to 2/2012 (3 years 10 months) was considered to equate to work at a skilled level and relevant to an Analyst Programmer [261311].
However, the Department’s investigations and report about VTechnology, undertaken on 20 December 2016, raised concerns with the claimed employment. The report shows the concerns came from two phone conversations: the first with the applicant who had been asked nine questions; the second with the past owner who had been asked 12 questions. The report[1] sets out the investigation:
[1] The Tribunal has deleted phone numbers and names of other employees
Called PA on the obtained number and spoke with him. PA was asked twice if he was comfortable to talk to the department and he assured that he was free to talk us at that point of time. PA confirmed his bio details and shared below details regarding his employment:
Q: Which was your last company you worked for?
A: [Pause] I have worked as a programmer but I am unable to recall company's name as of now.
The PA then consulted with someone in the background and stated that his last company’s name was dots and coms.
Q: Have you worked for V technology?
A: Yes I have worked there as a Programmer.
Q: Which programming languages did you use?
A: I used to work on ASP.net and created websites for US healthcare brand.
Q. What was the name of the healthcare brand?
A: I don’t remember.
Q: Who was the owner of V technology?
A: Mr Vishal Shah
Q: Can you name the employees that worked in the office?
A: I don’t remember the names.
Q: What was your salary?
A: It was 8000 rupees per month.
Q: What projects did you handle?
A: I worked on Static and dynamic websites and other dot.net related projects.
Q: Can you elaborate your work and duties you performed with the company?
A: Its as per the information I have already mentioned.
CALL ENDED
Details of the party found in third party website: …Called on the landline number and the call was answered by Mr Dustin. I asked him if he is from VTechnology, to which he informed that company is closed and advised to call his boss Mr Vishal SHAH for any information related to the company. I asked him if he was a business partner in that company to which he replied that Mr Vishal Shah is his boss and he was never involved in any work of VTechnologies as a business partner. Mr Dustin provided Mr Vishal’s number and advised to speak to him for any information related to V technologies. I called on the provided number and the call was answered by Mr Vishal Shah. He shared below details:
Q: Are you the owner of VTechnology?
A: Yes I was, but business was closed 2 years back and now I handle my father's business.
Q. Were there any other employees in your company other than yourself?
A: I was the only one. I had a friend as well who worked with me.
Q. Do you know someone called Vimal Kumar Navinchandra Trivedi?
A: (Long Pause) Yes he was in my company.
Q. You stated that no one else worked in the company apart from you and your friend.
A: I thought you meant ownership of the Company.
Q: How many employees worked in your company and their names?
A: There were five employees.
1. Mr A as developer
2. Mr B
3. Mr C
4. Mr D as developer
5. Ms E as developer
Since the owner did not mention the PA’s name, he was again asked:
Q: Was PA employed in your company?
A: Yes. I forgot to mention his name.
Q: How was attendance recorded in your company?
A: There was no specific procedure for keeping attendance of employees.
Q: How much was PA paid monthly?
A: PA was paid INR 5,000 per month
Q: What was the duration of PA’s employment?
A: I don’t clearly remember that.
Q: What were the duties of PA?
A: He was mainly involved in maintenance of the website only.
Q. Whom did he report to?
A: I am busy right now. I will check and let you know.
Q. What projects did the PA handle? Which websites did he maintain?
A: I don't remember.
CALL ENDED
The Department sent a natural justice letter to the applicant on 19 January 2017. In response, the applicant provided:
·The applicant’s undated statement.
·A letter dated 10 February 2017 from Vishal Shah.
·A letter dated 10 February 2017 from the Managing Member of Applied HealthCare Solutions in the USA.
·A letter dated 7 February 2017 from the proprietor of Dots & coms in India.
The applicant’s undated statement showed his response:
I wish to confirm that all, of the experience I have claimed throughout my skills assessment application and Department of Immigration application is completely truthful in every respect. My entire academic and workplace background is in the I.T. industry and my role at VTechnology was a natural career progression after completing my qualifications in Computer Science in 2006 and then working as a Software Developer at Shroff I.T. Services from March 2006 until March 2008. Following on from my work at VTechnology I moved on to Dots and Coms as an Applications Programmer from March of 2012 until September 2015 when I departed India to commence my life in Australia.
Upon arrival in Australia, thanks to be strong workplace history I was able to immediately secure skilled I.T. work as a Web Developer with Results Direct. More recently I have taken a higher paying role as a Web Developer with Educating Kids, where I work today.
Considering my qualifications, career progression and current work in Australia I am hopeful that DIBP would understand that there would be no possible reason for me to claim my experience in my IT. role at VTechnology if that was not 100% truthful.
The letter you sent to me on 19 January outlined concerns about inconsistencies with some answers provided by myself and my former employer following telephone interviews conducted on 20 December 2016.
To give the interview some context, I was called at around 10.00 pm just a few days prior to the last working day of the year and after a number of chaotic days at work and at home. I had only been in my new role with Educating Kids for 3 months and was exhausted and about to go to bed. We have a demanding two year old toddler and due to the demands of work and at home I was in no frame of mind to start an in depth interview so late at night.
I answered the phone, despite the late hour, as I was worried it might have been a family member calling in distress, as we would not normally receive any calls so late at night. After answering, a person claiming to be from DIBP started asking a series of questions relating to my migration background. I was initially very suspicious as to whether it was a genuine call as I have heard of scams where people ring with these sorts of questions and then ask for money and tell you that you have immigration problems. However, despite my concerns, I did answer the questions because the person calling seemed to know a lot about my background and claimed to be from the Department of Immigration.
He asked some questions and I was answering about my experience with Dots & Coms, my final employer in India, when I thought again that it did not seem right to be getting calls so late in the night from someone claiming to be a Department of Immigration officer. Worried about what I should do I paused and tried to establish what exactly was going on. I tried to ask the person claiming to be the DIBP officer why they were working so late and calling me at 10 O'clock at night. The officer then said he was phoning from New Delhi where the local time was 4:30 PM in India. He said it was an employment inquiry call which also confused me as I lodged my application in Australia, not New Delhi.
Eventually, but with great reservation, I answered the officer's questions. Keeping in mind it was almost five years since I stopped work at VTechnology and that since then I have worked in one other Indian company and then three Australian companies as an I.T. professional it is difficult to be 100% accurate with all answers as to what I was doing between 5 and 9 years ago; especially given it was so late at night and all the time I had concerns as to whether the caller was genuine or fake.
The letter from your office has raised concerns about inconsistencies in answers from my former employer and myself. As for my answer regarding salary at INR 8,000 per month and the employers answer of INR 5,000 per month please note that over the course of my 4 years of working at VTechnology my salary varied in part due to me being paid more later in my role there and also due to the fact that the salary varied due to the volatility of the business. As my former employer would have mentioned; this business shut down in 2014 and was not the only business run by him. He employed staff according to demand which meant that staff numbers and salaries varied, as was the manner in which he ran his business. I would not have stayed working there if I was not working in my Application Programmer role and it made sense that he did not understand the technical aspects of my role - as that was not his skills set. He just concerned himself with the work outcomes and I performed my duties relatively autonomously. When I started in my role, with my qualifications and previous experience from Shroff IT Services, I was willing to work for relatively less money; this is just the same as with my employment here in Australia. First I took a role with Results Direct to gain a foothold in the Australian I.T. industry and since then I have moved into better roles more reflective of my skills and experience. So I do not believe the salary paid to me at VTechnology should be an issue. Also, the employee numbers changed which would explain the former employer's answers.
The questions regarding the languages I programmed in and the names of former colleagues I may not have answered perfectly, given the timing of the call and the time since I had worked at VTechnology. Regarding my work for a US Health company, where I had worked on a Soaplogic Project for Medstech from 2012 to 2015, in my role at Dots and Coms, this project had a range of different modules such as Demographics, Appointments, Patient Portal, HL7, RX, etc. While I mentioned to the officer that I worked on various static and dynamic websites the specific brand name I worked on was not front of mind; possibly due to the time and the stress of my current new role. I did explain that the project was health care based for a US company and I also explained which tools and technology I had used.
The officer finally asked some wide ranging asked VTechnology employer name and duration of my job at VTechnology, employee attendance method, my duties and responsibilities, projects names, colleagues and supervisor names and what I did as an Application Programmer at VTechnology.
Due to the time and difficulty with the communication I was unable to immediately recall my work colleague's names. Even now, I can't remember all of their names as it was so long ago and the staff varied a lot while I worked there. I can confirm that some of my former colleagues were [*]. I tried to reach them but unfortunately, I could not find a way to contact them.
I also confirm that I did not have a direct supervisor. The nature of my work was dealing with external clients so I did not have as much to do with other employees on a day to day basis.
I called my former employer after receiving this letter and he said that he did receive a call from a DIBP officer and was asked questions about his old business and my role in the business. He said he answered questions roughly accurately though given that business had been shut down over two years ago he didn't have all the answers on hand. He was also called while working on one of his new projects and was not as focused on the call as I would have hoped. I am just one of many former employees. I worked for him five years ago and as he had already provided me a reference, while he was willing to take the DIBP call and he said he answered the questions asked truthfully, I do not think my Australian Immigration is important to him. So any minor inconsistencies would be understandable given the time that has passed since I worked there and also the time which has passed since that business shut down.
I have attached letter from the Employer (VTechnology, Dots & Com, and the clients of the Dots & Com), as Business is closed now and I have left this job in 2012 it's very hard to find the people working with me to get the statement from the colleges about my employment with VTechnology.
The letter dated 10 February 2017 from Vishal Shah discussed:
I confirm that I, Vishal Shah, am the former proprietor of VTechnology. I am the former employer of Vimal Trivedi and received a call from a person from your office on 20 December 2016 in relation to Vimal.
Vimal was one of many employees who has worked for me over the years. It was 2012 when he ceased working for me, 2 years before I shut the business down. My former business, VTechnology, employed Vimal for around 4 years and he was a competent employee. During the time he worked for me, due to fluctuations in client demand, I would employee between 2 and 6 staff; however he worked continuously throughout that period in his role as an application programmer. He was paid, like the other staff, between Rs 5,000 and Rs. 10,000 per month, This was in line with his experience and the cash flow of the business.
Ultimately the income and profitability of the business was not sufficient to continue. So I shut the business down and am now focused on the power tool industry; which was where I was working when I received the call from the DIBP officer.
I now understand that the reason for the call related to Vimal applying for permanent residence as we spoke the day after the call, when Vimal phoned me. That was the first time I had spoken to Vimal for almost 5 years. I tried to quickly explain to him the questions I had been asked and the responses I had given.
Vimal has since contacted me again to ask me to comment further because he had received a letter from your office outlining concerns about his experience with my business. Let me confirm that he did work in my business as an application programmer through those 4 years and I have no reason for stating otherwise.
The 5 years since our last discussion and the time since the business shut down meant there might have been some confusion around some of the questions asked and answers given. I do not have on going relationships with any of my former employees and no relationship, good or bad, with Vimal. I do re-confirm that the information I provided in his reference back in 2012 was correct and his decision to leave our company to go to a different company in a similar role showed that he had developed his skills in our business and as such further supports the fact that he was working for us as an application programmer. I trust this response covers all concerns raised.

The delegate’s decision shows the delegate’s concerns:
Your referee provided different responses about the number of employees who worked in the company, stating two initially before changing his response to five, without including your name. When prompted again if you were employed, your referee said you were, noting he forgot to mention you as one of the company's employees.
Your referee informed the officer that you received a salary at a rate of INR 5,000 per month, however he could not recall the duration of your employment.
Your referee advised you were mainly involved in the maintenance of websites only.
He was unable to provide details of your work such as the name of your supervisor, list of projects you worked on, or the websites maintained In the course of your employment with VTechnology.
Based on the departmental officer's interview with you, you mentioned that you used programming languages on ASP.net and created websites for a US health care brand but you could not recall the specific name of the brand.
You could not recall the names of your colleagues at VTechnology.
You were unable to elaborate on the duties you performed as an Application Programmer.
You advised that you are receiving a monthly salary of INR 8,000.
In summary, until prompted your referee did not include your name as an employee of the company, even though it was a small company of only five employees. Furthermore, your referee was unable to provide details of the work and duties you performed, the name of your supervisor, or the list of projects and websites you worked on during the course of your employment. In addition, when Interviewed you were unable to explain the duties you performed as a Programmer, recall the names of your colleagues at the company or name the brand associated with the website you worked on. You and your referee stated different salary amounts and based on open source Internet searches, your claimed remuneration is low compared to the market rate in India for a similar skilled position to the one claimed.
The delegate gave little weight to the information provided in the letters from the Managing Member of Applied HealthCare Solutions in the USA, and the proprietor of Dots & coms in India, for the reason that the letters did not directly address the applicant’s claimed employment with VTechnology.
The applicant responded to the Tribunal’s letter dated 26 March 2019 that invited comment on the adverse information and invited information concerning his employment in Australia:
·A career statement- that discusses his employment and tasks in each job from March 2006, including with VTechnology.
·A copy of a VTechnology work support document. This ostensibly shows a work task performed at VTechnology on 17 December 2010, signed by the applicant on a standard form with VTechnology letterhead.
·His current employer (Early Learning Group/Educating Kids) appointment letter, support letter of 4 April 2019, and a few pay slips. These documents show the applicant has been employed since 12 September 2016 as a fulltime web developer on a salary of $73,000.
·A bank statement to show he received pay from HordernIT. This showed a few payments in 2016.
·His former employer (Results Direct) appointment letter, and a selection of pay slips.
·His ATO Notices of assessment for 2016 and 2017, and his 2018 Tax return. His tax return indicated he is a Programmer- applications, and received $71,596 income.
After considering the material before the Tribunal, I consider the investigation in December 2016 and report is not convincing evidence that the applicant had made false claims about his past employment or that he had provided false documents in his application:
·For the Department’s investigation the officer located the owner through a third party website, and he advised he had closed the business two years before. The report shows the officer accepted that the business VTechnology had existed, and that the owner had been Vishal Shah. Based on the investigation and Vishal Shah’s evidence, as well as the documents provided by the applicant that ostensibly came from VTechnology (contract of employment, reference of 20 March 2012, salary certificate dated 30 April 2015, copy of a VTechnology work support document) I am satisfied the business existed during the period of employment the applicant claims.
·The Department’s investigation by phone calls was made in December 2016 and concerned employment the applicant claimed from April 2008 to February 2012 in India. The owner Vishal Shah was phoned unexpectedly and asked questions about the former business that had been closed for a significant time, and about the applicant who had last worked in the business four years and ten months before. The owner’s stumbling answers (concerning who worked in the business) and poor memory (duration of applicant’s employment, who he reported to, projects/websites he worked on) might reasonably be explained in that context. The owner did say the applicant was mainly involved in website maintenance and his wage. The owner’s letter of 10 February 2017 gives a reasonable explanation about the answers he had given including that: the applicant had been one of many employees over the years; like other staff the applicant had been paid between Rs 5,000-10,000; they had not spoken for 5 years. In sum, the owner’s recorded answers are not strong evidence that the applicant had not been employed at VTechnology in the relevant period.
·When the applicant was phoned, on his evidence it was late at night at 10pm. His undated statement shows that he had been concerned that the caller who identified as from the Department was not genuine given the lateness of the call, and the questions about his employment years in the past, and the caller’s explanation as to why the caller was phoning from India. The applicant’s guarded answers might reasonably be explained in that context. The report does not show the applicant’s reasonable queries about the caller’s veracity (which the applicant says he made)- which is an odd omission. The report shows he was first asked about his last job (Dots & coms) and then ostensibly gave some answers about his tasks in that job. He showed that he knew the VTechnology owner had been Vishal Shah and he gave his last wage in the business which he had earlier shown was INR 8000. In sum, the applicant’s recorded answers are not strong evidence that the applicant was not employed at VTechnology in the relevant period.
·While the applicant and owner gave inconsistent answers about the applicant’s salary, the owner’s letter of 10 February 2017 suggests the owner had not remembered the applicant’s salary given the many past employees and staff turnover, and the length of time since the applicant’s employment. As well, the applicant’s salary certificate provided in the application shows he had been paid a range of monthly salaries starting at Rs 6000 and ending at Rs 8000. In sum, the inconsistent answers are not compelling evidence that the applicant did not work at the skilled level of an application programmer.
·In his application and since the investigation, the applicant has provided a range of documents (2008 contract, 2012 reference, salary certificate, a VTechnology work support document) that ostensibly show he worked at VTechnology at the skilled level of an application programmer. Country information shows that false and fraudulent documents are prevalent and easily obtained in India, but that does not mean all documents from India cannot be relied upon. The investigation that comprised two phone calls does not persuade me that in this case all of the documentary evidence is false and cannot be relied upon.
·The delegate gave little weight to the information provided in the letters from the Managing Member of Applied HealthCare Solutions in the USA, and the proprietor of Dots & coms in India, for the reason that the letters did not directly address the applicant’s claimed employment with VTechnology. However, the letter dated 7 February 2017 from the proprietor of Dots & coms makes the point that the applicant had been recruited as a fulltime application programmer from March 2012 after their standard background checks that included “reasonable inquiry about his immediate previous employment at VTechnology”, and their tests about his skills. Similarly, the letter dated 10 February 2017 from the Managing Member of Applied HealthCare Solutions in the USA, also mentioned that when the applicant was hired as an application programmer through Dots & coms from March 2012, “At the time of hiring him I had reviewed his previous work profile at VTechnology and eligibility as an application programmer”. These letters by the employer/s immediately following his VTechnology job, support the applicant’s claim that he was employed at VTechnology as an application programmer.
In light of the foregoing, I am not satisfied that the applicant has given ‘information that is false or misleading in a material particular’ as defined in PIC 4020(5).
Therefore, the applicant meets PIC 4020(1). On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.189.215(1).
DECISION
The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 - Skilled - Independent visa:
·Public Interest Criterion 4020 for the purposes of cl.189.215(1) of Schedule 2 to the Regulations.
C. Packer
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.
…

[2019] AATA 1314

11 April 2019

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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