Weng (Migration) - [2023] AATA 3055

Weng (Migration) [2023] AATA 3055 (3 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Huiwen WENG
Mr Shuowen XUE
REPRESENTATIVE:  Ms Jie Zhan (MARN: 0639485)
CASE NUMBER:  2205366
HOME AFFAIRS REFERENCE(S):          BCC2020/2282903
MEMBER:Mireya Hyland
DATE:3 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 03 August 2023 at 12:01pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – false or misleading information– Ms Weng’s identity could not be adequately verified – relationship breakdown – Mr Xue is not a member of the family unit of a person who holds a student visa – Ms Weng has given, or caused to be given, to the Minister and/or an officer bogus documents – failed to meet the criteria in PIC 4020(1) – requirements of PIC 4020 can not be waived – no compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 56, 57, 65, 360, 499
Migration Regulations 1994, Schedule 2, cl 500.217
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 Home Affairs on 23 March 2022 to refuse to grant the applicants, Huiwen Weng and Shuowen Xue, Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
Ms Weng and her then de facto partner, Mr Xue, applied for the visas on 11 September 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Ms Weng applied for the visa to undertake study in Australia. Mr Xue applied for the same visa as a member of Ms Weng’s family unit. Neither Ms Weng nor Mr Xue claim to meet the criteria for a Subclass 590 (Student Guardian) visa. The criteria for the grant of a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visas on the basis that Ms Weng does not satisfy the requirements of cl.500.217 because he was not satisfied that Ms Weng meets Public Interest Criteria (PIC) 4020 in Schedule 4 to the Regulations. The delegate found that Ms Weng’s identity could not be adequately verified so she did not meet PIC4020(2A). That decision was provided to the Tribunal by Ms Weng with the application for review. Ms Weng and Mr Xue are represented in relation to the review by their registered migration agent, Ms Jie Zhan.
On 16 March 2023, the Tribunal invited Ms Weng and Mr Xue to a hearing to be held on 5 April 2023. The hearing invitation was sent to Ms Zhan as their authorised recipient in accordance with s.379G of the Act. The invitation included a Response to hearing invitation form requesting confirmation of who would attend the hearing. On that form, returned to the Tribunal on 23 March 2023, Mr Xue ticked ‘No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear’. The form was only signed by Ms Weng, but it states that it was signed on behalf of, and with the consent of, all applicants.
On 4 April 2023, Ms Weng sent a Notification of changes in circumstances 1022 Form, a form to be submitted to the Department of Home Affairs (the Department) to fulfil an applicant’s obligations under s.104 of the Act. It identified the changed circumstance as the breakdown of Ms Weng’s relationship with Mr Xue. The Tribunal contacted Ms Zhan to get clarification on how Mr Xue wished to proceed with the review application, including whether he would appear before the Tribunal and how to access a withdrawal form should he require. On 5 April 2023, Ms Zhan forwarded a letter from Mr Xue signed on 4 April 2023 confirming that he was aware of the hearing on 5 April 2023 and consenting to the Tribunal deciding the review without him appearing. He chose not to withdraw from the application for review.
Ms Weng appeared before the Tribunal on 5 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Chinese (Mandarin) and English languages. Where relevant the evidence given at the hearing is set out below. It is not necessarily set out in the order in which it was given.
The issue in this case is whether Ms Weng provided bogus documents to the Minister or an officer thereby failing to meet PIC4020(1). For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Broadly speaking, PIC4020, which is set out in the attachment to this decision, 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: PIC4020(1);
·     the applicant or a family member has not been refused a visa because of a failure to satisfy PIC4020(1) during the period starting three 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: PIC4020(2) and (2AA);
·     the applicant satisfies the Minister as to his or her identity: PIC4020(2A); and
·     the applicant or a family member has not been refused a visa because of a failure to satisfy PIC4020(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: PIC4020(2B) and (2BA).
The requirements in PIC4020(1) and (2) can be waived where there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa: PIC4020(4). However, this waiver does not apply to the identity requirements in PIC4020(2A) and (2B).
Does Ms Weng Satisfy the Criteria in PIC4020(1) and/or (2A)?
Ms Weng was born on 12 December 1999 in Fujian, China and is 23 years of age. Her mother is Zhulin He, born 14 October 1978, and her father is Yibin Weng, born 25 August 1976. They divorced in 2011 and both live in China. She has one sister, Huiqi Weng born 4 March 1997, who also lives in China.
At the time of application, Ms Weng was in a de facto relationship with Mr Xue, born on 31 August 1999, also from Fujian Province in China. Mr Xue first arrived in Australia on 20 July 2016 as the holder of a Student visa. The couple met and started their relationship while studying in Australia. They registered a domestic relationship in Victoria on 29 April 2019. Ms Weng provided evidence that on 19 January 2023 she lodged a Relationship Revocation application with the Victorian Registry of Births, Deaths and Marriages. Although there is no evidence before the Tribunal that the registration of their domestic partnership was ever actually revoked, both Ms Weng and Mr Xue claim the relationship has ceased. For reasons mentioned below, the Tribunal has some doubts whether Ms Weng and Mr Xue were ever genuine de facto partners as defined in s.5CB of the Act. However, ultimately it is not key to its decision, so due to its complexity the Tribunal does not make a finding on the question of whether Ms Weng and Mr Xue were, at the time of application, in a de facto relationship.
On 7 March 2018, Ms Weng made an application for a Student visa (the 2018 application). That visa was granted on 7 March 2018 (the 2018 Student visa), and she first entered Australia on 16 March 2018. On 11 September 2020, Ms Weng made a second Student visa application (the current application). Ms Weng’s 2018 Student visa ceased on 12 September 2020. Therefore, the 2018 Student visa is a visa that Ms Weng held in the 12 months before the current application was made.
On 11 January 2021, the Department sent a letter pursuant to s.56 of the Act requesting that Ms Weng provide her national identity card. In response, Ms Weng sent the Department an image of a national identity card from the People’s Republic of China in her name together with a translation of the card dated 13 January 2021. According to the translation, the Resident Identification Card was issued by the Fuqing Municipal Public Security Bureau and lists I.D. Card No. 350181199912122225. The address on the card is No. 52 Xiguo, Kengbian Village, Sanshan Town, Fuquing City, Fujian Province. The card’s term of validity is from 14 July 2015 until 14 July 2020.
On 16 March 2021, the Department sent a letter pursuant to s.57 of the Act advising Ms Weng that it had evidence that she provided inconsistent identity details in her current and 2018 applications and giving her an opportunity to comment on that adverse information. The details of her identity in the 2018 application were said to include that her Chinese National ID Card number was 350103199912123026, the issuing authority was the Fuzhou Public Security Bureau Tijiang [sic] Branch, the term of validity was 16 March 2017 to 16 March 2027, and Ms Weng’s address was 1 - 401, Mingmen Garden, No. 433 Middle Liuyi Road, Taijiang District, Fuzhou City, Fijian [sic] Province. The Department informed Ms Weng that its investigations indicated that the ID card with number 350103199912123026 ‘is non genuine’.
In her undated response to the Department’s s.57 letter (the s.57 response), Ms Weng made the following statement:
I entrusted a visa agency company in China to assist me in applying for the previous student visa. At that time, my agent did not ask me to provide any National ID card and I can confirm that the one I provided in January (ID number: 350181199912122225) is the genuine one. Before this, I personally had no idea that my previous visa agent had provided you with another ID card (ID number: 350103199912123026) in my prior visa application. I reckon that this is because they provided a false ID card without my authorization, not my real ID card. I also felt surprised that they even provided false documents and I have never seen this false ID card until this request received.
The Tribunal notes that there is no record of any ‘authorised recipient’ or agent associated with the 2018 application and the email for correspondence is in Ms Weng’s name. It also notes that the ID number 350103199912123026 appears on other documents submitted as part of the 2018 application, including Ms Weng’s birth certificate, Household Registration booklet, transcript and graduation certificate from Fuzhou No. 25 Middle School, and a certificate from the Institute of Business Management.
In the delegate’s decision he found that the inconsistency between the identity cards raises concerns about Ms Weng’s ‘real’ or ‘true’ identity. He found that she had ‘not provided sufficient evidence that could be used to substantiate their identity. While they claim that the identity card they have provided in the current application is genuine, I do not – given that they have previously provided non genuine identity card details to he [sic] Department – find their assurances sufficient to satisfy me of their “true” identity’, despite Ms Weng providing a genuine valid passport. The delegate found that Ms Weng’s identity could not be adequately verified and he did not know who she really is, therefore, he was not satisfied that she meets PIC4020(2A), that the applicant satisfies the Minister as to the applicant’s identity.
Ms Weng’s Identity – PIC4020(2A)
Ms Weng provided the Tribunal with a copy of her passport with the review application. She also provided the Tribunal with a copy of the National I.D. Card No. 350181199912122225. On 2 March 2023, the Tribunal sent a request to the Department’s Document Examination Unit asking that it please advise ‘whether the National ID card 350181199912122225 given in response to the s.56 letter dated 11 January 2021 is genuine or bogus.’ On 6 March 2023, the Department responded that ‘the referral [was] finalised as genuine.’ The referral report states that appropriate authorities were contacted and ‘confirmed the Id card number 350181199912122225 was confirmed as genuine and matching with the applicant’s name and living address.’
The Tribunal finds that Ms Weng’s Chinese National Identification Card provided to the Tribunal with number 350181199912122225 (NIC *2225) is a genuine document and that the information in that document is, therefore, correct. In particular, the Tribunal notes that NIC *2225 includes a photograph of Ms Weng and it finds that Ms Weng’s address is No. 52 Xiguo, Kengbian Village, Sanshan Town, Fuquing City, Fujian Province (the Sanshan Town address). At the hearing, Ms Weng told the Tribunal that her parents have bought another property, but the Sanshan Town address remains her ‘hometown’ and, therefore, where she is registered.
In its hearing invitation dated 16 March 2023, the Tribunal requested that Ms Weng provide a complete copy of her Household’s Registration Book together with a translation. Ms Weng provided her mother’s Household Register issued on 5 August 2011 (Ms He’s Register). It is for the ‘Domicile’ at the Sanshan Town address. Ms Weng and her sister are included in Ms He’s Register but her father, Mr Weng, is not. The householder is her mother, Zhulin He with ID Card No. 350181197810141581. The document does contain an anomaly in that for the question ‘When and from where to this domicile’ it records ‘Moved from No. 52, Xiguo, Kengbian Village, Sanshan Town, Fuqing City, Fujian Province to this domicile due to family splitting on 5 August, 2011.’ However, that is the Sanshan Town address that is ostensibly the domicile related to Ms He’s Register and Ms Weng’s current registered address. The Tribunal considers that since the Register appears to have been issued as a result of Ms He’s and Mr Weng’s separation, when he was most likely removed from the Register, this may merely be how that fact has been recorded. In light of this, the Tribunal does not give this anomaly any weight.
The information in NIC *2225 is consistent with the information in Ms Weng’s passport. Ms Weng entered Australia on her existing passport which is valid until 6 July 2027. There is no evidence before the Tribunal, and there has never been any indication, that the passport is a bogus document or is not a genuine, valid passport.
Based on the above information, and in particular the Department’s advice that NIC *2225 is a genuine document, Ms Weng has satisfied the Tribunal as to her identity and she meets PIC4020(2A) of the Regulations.
Was a bogus document given or caused to be given in relation to a visa application?
Even though Ms Weng’s visa was refused on PIC4020(2A) and the Tribunal has found that it is satisfied of her identity so she meets that subparagraph and need no longer be concerned about the ten year exclusion, the Tribunal is still required to consider whether she can meet PIC4020(1). The fact remains that the delegate states in his decision that the National ID Card provided with the 2018 application is ‘non genuine’. That would appear to be evidence before the Tribunal that Ms Weng has given, or caused to be given, to the Minister or an officer a bogus document in relation to a visa that she held in the period of 12 months before the current application was made.
Bogus Document
Whether a document is a ‘bogus document’ is determined separately from the overall consideration of PIC4020[1] and is a question of fact to be determine on the evidence before the Tribunal.[2] The Federal Court has suggested that the best approach may be for the Tribunal to first determine whether a document is a bogus document and then go on to consider PIC4020(1).[3]
[1] Singh v MIMAC [2013] FCCA 1435 at [24].
[2] Palikhe v MIBP [2014] FCCA 1875 at [30]-[32] and [37]-[40].
[3] Salopal v MIBP [2018] FCA 1308 at [88]. The Court’s comments are obiter, but persuasive regarding the approach to PIC4020(1) and should presumably be followed.
The term bogus document for the purpose of PIC4020(1) is defined in s.5(1) of the Act.[4] Under s.5(1), a bogus document is one that the Tribunal reasonably suspects:
(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.
There is no relevant distinction, for the purposes of the definition of bogus document, between an original and a copy of the same document.[5]
[4] s.5(1) as amended by Migration Amendment (Protection and Other Measures) Act2015 (Cth) (No 35 of 2015). Section 97 was repealed by that Act from 18 April 2015 and replaced by the identical definition in s.5(1).
[5] AIB16 v MIBP [2017] FCAFC 163 at [76] (while in the context of s.91W of the Act, it applies equally to PIC4020).
To find a document is a bogus document it is necessary to identify which paragraph in the definition applies to the document. References to the non-genuineness of a document like those found in the Department’s correspondence or the delegate’s decision, or statements that a document appears to be falsified, do not amount to a finding that it is a bogus document as defined.[6] Also, a distinction must be drawn between a document reasonably suspected of being a bogus document within the meaning of s.5(1) and false information or misleading statements given which may lead to a bogus document being obtained.[7]
[6] Shu v MIMIA [2003] FCA 791 at [33]-[35]. cfFRS17 v MIBP [2022] FedCFamC2G 808 at [9]-[10]; Maharjan v MIBP [2016] FCCA 3029 at [17] where it was not an error to find documents ‘not genuine’ based on them being ‘fraudulent’ without identifying the paragraph (not the subject of consideration when the case was overturned on appeal: Maharjan v MIBP [2017] FCAFC 213).
[7] Singh v MIMAC [2013] FCCA 1435 at [27]-[29], Sharma v MIMAC [2013] FCCA 1280 at [29]-[30].
To meet the definition of bogus document there need only be a ‘reasonable suspicion’ that a document is bogus, not probative evidence. The relevant test is whether the Tribunal reasonably suspects the document is a document that falls within one of the three limbs set out above, not whether one or more of the three limbs is satisfied as a matter of fact.[8] But a reasonable suspicion in this context requires objective circumstances, not mere surmise or conjecture, upon which the reasonable suspicion can be founded.[9]
[8] Sun v MIBP [2015] FCCA 2479 at [45] where the Court held that in relation to paragraph (b) of the definition the primary issue is whether the decision-maker reasonably suspects a lack of authority, not whether that authority was lacking as a matter of fact.
[9] Sun v MIBP [2016] FCAFC 52 at [86], citing George v Rockett (1990) 170 CLR 104 at 115-116, see also Logan J at [21]; cf Rani v MIBP [2015] FCCA 455 at [18], stating the evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend, applying George v Rockett (1990) 170 CLR 104 at 112-113.
There is no requirement that the falsity of a bogus document should be relevant to criteria being considered for the grant of the visa.[10] However, PIC 4020(1) does require it have been given ‘in relation to’ a relevant visa application. But the phrase ‘in relation to’ should be given a broad meaning as it refers to the purpose for which the document is given.[11] It does not have the narrower meanings of ‘relevant to’ or ‘probative of’ in the sense that it must be logically probative of the criteria for the visa. Nor is the meaning informed by the definition of information that is false or misleading in a material particular.[12] The definition in s.5(1) of the Act for bogus document, unlike false or misleading information, makes no reference to visa criteria, so ‘in relation to’, in the case of a bogus document, is not affected by the limitations imposed in PIC4020(5).[13] As such, a bogus document submitted as part of a visa application would plainly be ‘in relation to’ the visa application even where the bogus document was not directly relevant to that visa application.[14]
Documents in the 2018 Application
[10] Arora v MIBP [2016] FCAFC 35 at [15].
[11] Nanre v MIBP [2015] FCA 528 at [27].
[12] Nanre v MIBP [2015] FCA 528 at [27], [31].
[13] Arora v MIBP [2016] FCAFC 35 at [15] and [17]. See also Batra v MIAC (2013) 212 FCR 84; Thind v MIBP [2014] FCA 207 and Mudiyanselage v MIAC (2013) 211 FCR 27 at [23]-[31].
[14] Nanre v MIBP [2015] FCA 528 at [27]. See also Nanre v MIBP [2015] FCCA 134 at [54].

According to the delegate’s decision, on 7 March 2018, Ms Weng gave the Department a Chinese National Identification Card with the 2018 application and that Card was a ‘non genuine’ document. In exploring whether there is sufficient information for the Tribunal to reasonably suspect that one of the three paragraphs in the definition of bogus document applies, the Tribunal has been somewhat constrained by the fact that the Department has arranged for certain certificates to be attached to relevant documents restricting the disclosure of that information in this decision.
On 27 April 2022 and 15 March 2023, a delegate of the Minister for Home Affairs and Secretary of the Department of Home Affairs certified in accordance with s.376(1)(a) of the Act that it is not in the public interest for certain information on the Department’s file to be disclosed. Therefore, the material can only be disclosed if the certificate is invalid or if the Tribunal exercises its discretion to release that information. A s.376 certificate is valid provided it is dated, has a signature, and a public interest reason is clearly specified in the certificate with sufficient detail to identify the harm to the nation or public service that would result from the information being disclosed. The reasons given in the certificates on Ms Weng’s file are that disclosure of the information would prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance and it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness of those methods.
It is the Tribunal’s assessment that the certificates are valid. They are dated, have a signature, and it is the Tribunal’s opinion that the reasons given in the certificates are valid public interest reasons not to disclose the information. Also, it is the Tribunal’s determination that it is not appropriate to disclose the specific information because it is not in the public interest, and in this case unnecessary and unreasonable, to disclose material relevant to an ongoing investigation or that would reveal investigatory techniques. In exercising its discretion not to release specific material in this decision or to the applicants, the Tribunal took into account that Ms Weng admits that the outcome of the Department’s investigations is correct and does not contest that a bogus document was part of the 2018 application. The Tribunal also considered whether the consequences of its release may have a detrimental effect on any individual, including departmental officers or informants. However, the Tribunal did make Ms Weng aware of the information that is directly relevant to her case in general terms both at the hearing and in a letter sent to her pursuant to s.359A of the Act dated 5 April 2023. In that letter it gave Ms Weng an opportunity to challenge the certificates and request the Tribunal use its discretion to release the information. She did not request that the Tribunal release the information.
On 28 April 2022, the Department sent the Tribunal an electronic copy of Ms Weng’s file related to the current application (BCC2020/2282903) as required by s.352 of the Act. That file did not include any documents or information from the 2018 application file or evidence that she had given the Department a bogus document. It did include a document that made note of the fact, set out in the delegate’s decision, that ‘ID card 350103199912123026 was non-genuine’, but that is not evidence of that fact. Like the delegate’s decision it only alludes to a departmental investigation unearthing such evidence. That document is covered by the s.376 certificate dated 27 April 2022.
On 9 March 2023, the Tribunal sent a summons to the Secretary of the Department of Home Affairs, in accordance with the Department’s policy, for Ms Weng’s departmental file related to the 2018 application (BCC2018/1073347). That summons also requested ‘Copies of all evidence relied upon by the Department for its determination that the Chinese National ID Number 350103199912123026 is bogus’. On 11 March 2023, the Department resent file BCC2020/2282903 related to the current application. After further contact from the Tribunal, on 16 March 2023, the Department sent a third copy of file BCC2020/2282903 mixed with some documents from file BCC2018/1073347 together with a Word document named File Note CID 70824557970 - Summons request AAT.DOCX (the summonsed document). That document is covered by the s.376 certificate dated 15 March 2023. It contains the evidence on which the delegate based his finding that the identification card provided with the 2018 application is ‘non genuine’.
The Tribunal finds, based on the documents from file BCC2018/1073347 given to it by the Department, that the 2018 application included a copy of the Chinese National Identity Card number 350103199912123026 (NIC *3026) with residential address 1 - 401, Mingmen Garden, No.433 Middle Liuyi Road, Taijiang District, Fuzhou City, Fujian Province (the Mingmen Garden address) and term of validity 16 March 2017 to 16 March 2027. NIC *3026 is in Ms Weng’s name and includes Ms Weng’s picture. That picture appears identical to the picture on NIC *2225, which is Ms Weng’s genuine Chinese National Identity Card.
The other documents provided to the Tribunal from file BCC2018/1073347 that are part of the 2018 application are the 2018 application form and the following (the 2018 documents):
·     a copy of a Household Register for the Mingmen Garden address (the Weng Register) listing Ms Weng’s Citizen ID Card number as 350103199912123026. It lists Ms Weng’s father as Yibin Weng born 1 October 1976 and as the householder and her mother as Zhu He born 15 October 1976 with Citizen ID Card No. 350103197610151209. The Register does not list any other children in the household.
·     the Household Register is accompanied by a Notarial Certificate that lists Ms Weng’s ID number as 350103199912123026 and certifies that the Household Register was   to the Notary by Ms Weng.
·     a copy of a birth certificate that listed Ms Weng’s ID number as 350103199912123026 and her mother as Zhu He with ID Card No. 350103197610151209.
·     a copy of a Transcript Record for Fuzhou No. 25 Middle School together with a Notarial Certificate and translation. The Notarial Certificate certifies that the Academic Transcript was shown to the Notary by Ms Weng whose ID number is 350103199912123026.
·     a copy of a Graduation Certificate together with a Notarial Certificate and translation. The Notarial Certificate lists Ms Weng’s ID number as 350103199912123026 and certifies that the Graduation Certificate was found to be authentic.
·     a copy of a Certificate from the Institute of Business Management dated 8 January 2018 that lists Ms Weng’s ID Card No. as 350103199912123026.
The Tribunal notes that at the hearing Ms Weng conceded that NIC *3026 was given to the Department as part of her 2018 application. Although she initially stated that the Transcript Record for Fuzhou No. 25 Middle School is genuine, she could not explain the ID number on the Notary’s certification. She claims to be unaware of any of the other 2018 documents.
The Tribunal has considered the information in the summonsed document, and it finds that information to be highly persuasive evidence that NIC *3026 is not a genuine document. This of course is supported by the fact that the point has been conceded by Ms Weng in her s.57 response and at the Tribunal hearing. While the summonsed document does not contain proof of how NIC *3026 was acquired, it is clear from the Department’s investigation that NIC *3026 is counterfeit or has been altered by a person who does not have authority to do so. Therefore, the Tribunal reasonably suspects that NIC *3026 meets the second paragraph of the definition of bogus document in s.5(1) of the Act.
In light of the fact that NIC *3026 is a bogus document and NIC *2225 contains Ms Weng’s genuine ID number, the Tribunal reasonably suspects that the 2018 documents also fall within the descriptions of bogus document set out in the three paragraphs of that definition. Those documents all contain the ID number in NIC *3026 and not the ID number in NIC *2225. The Weng Register is also inconsistent with Ms He’s Register in that the householder is Mr Weng, Huiqi Weng is missing, and Ms He’s name, date of birth, and ID number are wrong. Further, Ms Weng’s mother’s name and ID number are wrong on the birth certificate (although are consistent with the Weng Register). The Tribunal reasonably suspects that these, and the academic documents, are counterfeit, although there is the possibility that they have been altered by a person who does not have that authority. Whichever the case, it has a reasonable suspicion that they fall within paragraph (b) of the bogus document definition. The Tribunal is unsure whether the various Notarial Certificates that list NIC *3026 are entirely counterfeit or were obtained by false or misleading statements that caused the Notaries to provide them. But it reasonably suspects that paragraph (b) or (c) of the definition of bogus document accurately describes those documents.
As such the Tribunal finds that NIC *3026 and the 2018 documents are bogus documents within the meaning in s.5(1) of the Act.
Given or Caused to be Given
The Tribunal notes that the information provided in the 2018 application form is consistent with the information in the bogus documents provided with the 2018 application. Essentially, just about everything in Ms Weng’s 2018 application is untrue.
In a statement dated 29 March 2023 (the statement), Ms Weng claims that she did not lodge the 2018 application and is the victim of a scam. In a submission from Ms Zhan dated 3 April 2023 (the submission), it states the documents were given by ‘her previous agent without her knowledge’ and the delegate did not consider this explanation because it is ‘policy’ that ‘it is the responsibility of the applicant to ensure the documents … submitted for her’ are genuine. The Tribunal would argue that this is, in fact, the law and not policy, but concurs that it was not considered by the delegate who determined the matter on a different basis. The submission continues that Ms Weng had no control over which documents the agent submitted on her behalf in the 2018 application. She provided genuine documents to an agent ‘she thought was credible’ and was not aware that he gave bogus documents. Both the statement and the submission contend that the fact that Ms Weng did not authorise the bogus documents being given with the 2018 application means she did not give them to the Department and providing genuine documents in her current application is proof that she had no intention to provide bogus documents in the 2018 application. She told the Tribunal that if she had known about the bogus documents given in the 2018 application, ‘I wouldn’t have used genuine documents when I made the application this time.’
When asked at the hearing how it was that the bogus documents came to have been given to the Department with the 2018 application, Ms Weng told the Tribunal that she does not know because she was unaware of the bogus documents until Ms Zhan informed her that her visa had been refused. This is not entirely true since she also told the Tribunal that she provided the s.57 response, which she did before the visa was refused. The Tribunal found that Ms Weng’s evidence often contains these smaller sorts of ‘convenient’ untruths. It makes it difficult for the Tribunal to identify if she is an untrustworthy witness or merely being ‘sloppy’ with her evidence. In either case, it does not reflect well on Ms Weng’s credibility or her approach to matters like the 2018 application.
In her statement, Ms Weng claims that like most young adults she wanted to prove that she was mature enough to make her own decisions, so when she decided to study abroad she started looking for agents. A relative recommended an agent who claimed to be an expert in study in Australia. She claims not to remember his full name or the name of his company, but he went by the ‘nickname’ Bojiao. Ms Weng states that she had a consultation with him where he introduced her to different course packages for study in Australia. She claims that she ‘just wasn’t in a right mind, I got fascinated by his lively introduction, was trapped by his words.’ Bojiao ‘guarantee me 100% successful rate on all his application’ and ‘I paid CNY200,000 to him in his office in Fuzhou, Fujian for his service as he said these fees could cover the first year of tuition fee, student visa application fee, overseas student health cover and their service fee.’ She then states, ‘In the end, my student visa did get approval and I was very excited’. It was not until the current application that she discovered ‘my first agent submitted non-genuine documents … instead of my own documents that I provided to him’. She states that she was ‘too young and naïve in 2018 and fell into the scam’ and she regrets making an ‘incorrect decision, trusting with wrong person.’
While the explanation in the statement and the submission are broadly the same as her story at the hearing, the details Ms Weng provided to the Tribunal differ significantly. According to Ms Weng’s oral evidence to the Tribunal, she was only 18 and, having just graduated senior high school, she wanted to come to Australia to study. A friend of her parents told them that he could help. Contrary to the statement, Ms Weng was clear before the Tribunal that since she was so young, she left the visa for her parents to arrange. She said that the family friend asked her for a copy of her passport, national ID card, household registration, and academic records, which she gave to him when they met in a burger store, not during a consultation with an agent at his office.
Ms Weng also sent the Tribunal a screenshot of a text chat that she initially claimed was, and appears to be, between herself and her parents’ friend, named in the chat as ‘Bojiao’. It states that Ms Weng should scan her ‘ID card and Household Register’ and email them to Bojiao. Ms Weng claimed at the hearing that the chat is from early 2018, although she did not provide any support for that claim. Later, when asked for evidence of the date of the chat, she said she could no longer find it in her phone because the text conversation was actually from her ‘chat history’ with her mother. This was even though the translation provided indicates that it is between ‘Bojiao’ and ‘Huiwen’, Ms Weng’s first name (Ms He’s first name is Zhulin). She also said both in the statement and at the hearing that she gave the documents to Bojiao when they met in person, inconsistent with the chat.
In her evidence, Ms Weng appears to refer interchangeably to the friend of her parents and a former agent or lawyer. As well as the references in the statement and submission, at the hearing she said things like she had used a different agent for the current application than she used for the 2018 application. There is no indication in Ms Weng’s 2018 application or the Department’s file that Ms Weng had a migration agent or used any agent in 2018. She included in the 2018 application form that her email address for electronic communication was [email protected] and all correspondence appears to have been sent to that email address. Email addresses @163.com are personal emails supplied by Net Ease to individuals in China. This is inconsistent with the claims that an agent was responsible for the bogus documents being given to the Department.
When the Tribunal pointed out that there was no agent associated with the 2018 application, Ms Weng said that she did not really use an agent and that it was her parents’ friend. This is similar but differs from the claim that a relative recommended the agent Bojiao to her which implies he is not a family friend. She also stated when claiming he was not an agent that he did have an agency company ‘behind him’ which appears inconsistent with the evidence in the statement that she had a consultation with him in his office where she gave him money and documents. Ms Weng never referred to the person who she claims assisted her with her 2018 application as Bojiao except in her statement and the chat that she claims was from him in 2018. However, for convenience, the Tribunal will refer to this man as Bojiao in this decision and treat his conduct as synonymous with any agency, agent or lawyer associated with the 2018 application consistent with Ms Weng’s evidence.
According to Ms Weng, Bojiao said that he required CNY200,000 (AUD42,300) for the visa application fee, agent fee, and one year of school fees, but they would not need to pay any money until the visa was granted. When he said that there would not be a fee until the visa was granted her parents thought there ‘should be no questions, just let the friend to help.’ It seems evident to the Tribunal from this version of the story that the focus of Ms Weng and her parents was on whether Bojiao was defrauding them of their money, not whether the 2018 application would be properly made. Of course, the claim that no money needed to be paid appears inconsistent with the statement where the money was paid and then ‘in the end’ Ms Weng got the visa, although in that version there was a guarantee that the visa would be granted. Ms Weng also told the Tribunal that Bojiao asked her to sit an academic English test, adding to the statement that because she had intended to study in Australia she had already taken one. In the statement, however, this is presented as evidence it was reasonable to see Bojiao as legitimate, whereas Ms Weng told the Tribunal that she did not know why he did not then require her to provide the English test results, inferring it had struck her as odd. She said that after their initial meeting at the burger shop he did not ‘really contact me anymore.’
At the time, Ms Weng claimed at the hearing, because she was only 18, she did not ask any questions. In her statement, which emphasises that she had a pro-active role, she states that although she was ‘an adult legally, it was more about the development of one’s mind’ and she did not believe she was ‘capable of make a smart and rational decision.’ At the hearing this changed to focus on a claim that she left it all to her parents and she just waited for her visa. She claimed that at the beginning of March 2018, Bojiao contacted her parents to tell them that the visa had been granted and invited them to go to an office in Fuzhou City. She told the Tribunal that ‘from the visa grant letter they provided me a written form letter, a piece of paper’ and a friend in Australia told her that there would be a digital grant letter. Everything went smoothly, so she just came to Australia and because she was only 18, she says, she trusted ‘my agent so much’. Since she had never gone abroad before she ‘thought that was the genuine procedure when you need to go abroad.’ But she also said that she knew enough to check the Department’s Visa Entitlement Verification Online (VEVO) service to confirm that her visa was valid.
Ms Weng told the Tribunal that when Ms Zhan told her about her visa refusal both she and her parents contacted Bojiao. While he blocked her calls, he initially spoke with her parents but they ‘just found excuses’. However, when the Tribunal asked about the excuses, Ms Weng then said he did not really give any excuses, he just said sorry I’m busy at the moment can you call me later and each time he picked up the call he would say sorry I have urgent things to deal with and sometimes he did not really pick up the calls. Later, after about a month, he blocked her parents’ calls as well.
It is Ms Weng’s contention that she provided Bojiao with genuine documents, but she could not explain why he then gave the Department bogus documents. She said that she thought that he was ‘just a person to introduce the whole process’ and there was a ‘company agent behind him’ and she was not sure they had followed the ‘formalities’. She said she trusted Bojiao because he was a friend of her parents. But when told by the Tribunal that, even so, the responsibility lay with her, she then said that she did search online which referred to the same documents she had provided to Bojiao for Australian visa applications so she thought ‘there should be no problem.’ Although there is conflicting evidence over time about who Bojiao is, how Ms Weng knows him, where and how they interacted and to what extent she drove the process, Ms Weng has continuously maintained that she is the victim, she did not know anything about the bogus documents or why Bojiao submitted them when he had genuine documents, or why NIC *3026 and NIC *2225 both contain the same photograph. She insists that it was Bojiao and/or the ‘company agent’ who gave the bogus documents to the Minister or an officer, not her, so she meets PIC4020(1).

As noted above, there are obviously a number of discrepancies in the evidence from Ms Weng about the documents and the making of the 2018 application generally. The one that is of most concern to the Tribunal, however, is the discrepancy between her evidence before the Tribunal and what appears in the s.57 response. In her s.57 response, Ms Weng states that she entrusted ‘a visa agency company’ in China to assist her in applying for the 2018 Student visa and ‘At that time, my agent did not ask me to provide any National ID card’ (emphasis added). The s.57 response goes on to claim that Ms Weng ‘had no idea that my previous visa agent had provided you with another ID card’ and ‘I reckon that this is because they provided a false ID card without my authorization, … I also felt surprised that they even provided false documents and I have never seen this false ID card.’ This is obviously highly problematic and seriously undermines Ms Weng’s credibility. Setting aside that, like the statement and the submission, the culprit is an agent and not some family friend ‘backed up’ by an unknown questionable entity, Ms Weng clearly states that this agent did not have NIC *2225 because he did not ask her for her ID card. This is clearly inconsistent with all her other evidence that she was asked for and provided NIC *2225, a fact that, if Ms Weng did not produce NIC *3026 herself, was necessary to explain how NIC *3026 came to include the photo of Ms Weng from NIC *2225.
The Tribunal put this inconsistency to Ms Weng at the hearing. Initially she merely stated that her ‘agent’ had asked her to provide her ID card and she had provided it, pointing to the screenshot of the chat as evidence. The Tribunal has already set out its concerns about that screenshot above. The Tribunal confirmed that the s.57 response was her statement to the Department with her signature at the bottom. She then said that she did remember the s.57 response, which she said ‘was about one year ago’ (when it was closer to two years earlier). She claimed, in essence, that ‘my English was not that well so I asked a translator to translate the document for me. Because I was using the same lawyer that lawyer should be aware that I submitted my ID document. I think that it was miswritten but of course I have my responsibility for not reading this seriously.’ Once again, her excuse for the problem is that her agent, in this case Ms Zhan, made the error and her only mistake was that she was careless, not intentionally fraudulent.
The Tribunal notes that Ms Weng’s residential address on the current application form is the Mingmen Garden address, that is, the address associated with NIC *3026 not the Sanshan Town address found on the genuine NIC *2225. Initially when the Tribunal asked Ms Weng to explain this she made vague reference to Bojiao and the 2018 application which seemed evasive. Once it explained again that the address also appeared in the current application she merely stated that she could not explain it because it was not her address. The Tribunal acknowledges her argument that she did not know there was a problem with the 2018 application until after she lodged the current application and so was not on notice that she needed to pay closer attention. Still, this would appear to be yet another claim that it was her agent who made the error, not her, so she was not responsible. It is clear that Ms Weng has shown a pattern of indifferent behaviour and a lack of rigorousness about, or even interest in, what is submitted on her behalf in visa applications to the Department.
The Tribunal accepts that the bogus documents did not come from Ms Weng, but rather either from Bojiao or an associated agency and were submitted with the 2018 application on her behalf. However, the fact that a bogus document needs to be ‘given or caused to be given’ by the applicant does not mean that the applicant needs to be aware that a bogus document has been given by another person or the applicant gave instructions to that other person for it to be provided.[15] Even if Ms Weng did not fill out the application form or physically give the documents to the Department, she can still have caused the bogus documents to be given to the Minister and an officer despite the allegations of fraud by a representative or third party.[16] If an applicant is ‘indifferent’ to a third party acting unlawfully or dishonestly it can be said that he or she caused the documents to be given.
[15] Singh v MIBP [2018] FCAFC 52 at [152]: the Court held that it was open to find that the applicant had caused a bogus document to be given to the Department because he was content to have a relative act as intermediary and in such circumstances it is not necessary to determine whether he had knowledge of or was complicit in the fraudulent conduct. Also, Singh v MIBP [2015] FCCA 2776 at [49] and Dhanuka v MICMSMA [2019] FCCA 2849.
[16] Singh v MIBP [2015] FCCA 2776 at [56]: the Court found that ‘s.98 of the Act should apply to PIC4020 and that an applicant should be deemed to have completed an application form where he or she causes a form to be filled out on his or her behalf’.
Indifference in this context means to be recklessly indifferent to the truth of the material put forward by the third person in the visa application.[17] This requires a finding that is close to dishonesty based on probative evidence as to the subjective state of mind of the person affected by the fraud of a third party.[18] Evidence as to a third party’s relationship with the applicant and the scope of any authority given, either expressly or impliedly, is also relevant to establishing whether an applicant is complicit in or indifferent to relevant conduct. While there is a distinction between indifference as to how an agent acting lawfully and properly can achieve a desired outcome and indifference as to whether that outcome is achieved unlawfully or dishonestly,[19] applicants’ indifference to the detail of an application can be such as to make the scope of the authority broad enough to include such things as the provision of bogus documents and false or misleading information.[20] In this regard, the Tribunal notes that Ms Weng said that she went online to check the requirements for visa applications and, so, it can be assumed that she was aware that there is an application form. However, she took no interest in checking to make sure the information in her application form was true, a simple and obvious step that would have brought the bogus documents to her attention.
[17] Kaur v MIBP [2019] FCAFC 53 at [134] and [141].
[18] Kaur v MIBP [2021] FCA 1026 at [60].
[19] Gill v MIBP [2016] FCAFC 142 at [42], [48]-[49].
[20] Sran v MIBP [2014] FCCA 37. Also Koirala v MIBP [2014] FCCA 842 at [6]-[7]: the Court held it was open to find that the applicant’s lack of involvement or failure to take any interest in the visa application demonstrated that he had instructed the agent to lodge the application and was indifferent as to how that agent went about that task. Singh v MIBP [2014] FCCA 1816 at [33]-[35]: the Court held it was open to conclude that the applicant was indifferent to the contents of the visa application because of the ‘flimsy’ evidence of the interaction between the applicant and agent.
The Tribunal asked Ms Weng why it should not find that she had been recklessly indifferent about the 2018 application. She said that she later became aware that she was wrong and ‘even my parents feel quite bad and apologise to me’, but at the time she was only 18 years old and her parents were just thinking that if they give Bojiao the money then the visa will be granted. Ms Weng had claimed, to the Tribunal at least, that Bojiao was a family friend so it asked her how her parents knew Bojiao. She said that they came from the same village. During the Chinese spring festival people who work outside their village return home and Bojiao went to Ms Weng’s grandparent’s home and ‘mentioned these things’. He had a ‘good name’ and is ‘quite wealthy’ so ‘basically my family trusted him.’ This is yet another minor variation on the story about Bojiao. When the Tribunal looks at all the evidence about the family’s attitude towards acquiring the 2018 Student visa, including claims that Ms He and Mr Weng simply wanted to give Bojiao money without asking question just to get the visa, it sees a reckless indifference to the truth of the documents put forward by Bojiao in the 2018 application. Despite her evidence to the contrary, it is clear that he was not a friend of the family and that the family performed no due diligence about his bona fides or the application.
In any event, even if the Tribunal were to accept that because Ms Weng was only 18 years old it was reasonable for her to leave major decisions like her visa to her parents, which given the conflicting evidence it does not in this case, both her and her parents’ failure to take any interest in the 2018 application demonstrates that Ms Weng had instructed Bojiao to lodge the application and was indifferent as to how he went about that task. This is supported by Ms Weng’s continuing lack of involvement in her current application as shown by her evidence about how the Mingmen Garden address got into the current application form and how she explains the discrepancy in her s.57 response.
There seems to be a problem with Ms Weng keeping track of what is being provided to the Department on her behalf and complete ongoing indifference about what is being given for her to get her visa. The Tribunal put her on notice that she appears not to care how she gets her visas. She just hands the applications off to someone else and is uninterested in what then happens. In response Ms Weng said that she feels sorry about what has happened, but in the case of the 2018 application, that was her previous agent, and she did not know about those problems until after the current application had been lodged. This excuse presupposes that Ms Weng’s level of indifference was acceptable as long as it did not continue after it was brought to her attention. First, that is not the case. Applicants should not need to be told that they must not be recklessly indifferent about what a third party is doing to acquire their visas. Second, that similar problems continued to occur in the current application is good evidence that her approach to the 2018 application was not a one-off, but rather a pattern of migration behaviour. And her explanation for the contradiction in the s.57 response shows that this level of indifference has continued even after the problem has been brought to her attention.
That she told the Tribunal she realises she was wrong and what she did previously was not correct, but she did not do it on purpose and it was not intentional does not assist her. Her claim that she trusted the ‘other lawyer really much’, that her family thought he was a nice person and ‘because the lawyer can help us I just authorise the lawyer and he can do to help me. But I was wrong for the whole thing’ does not change the fact that the evidence as a whole shows a reckless indifference in relation to the 2018 application. It indicates that there was at least implicit authority by Ms Weng, and given the constantly shifting evidence possibly an express authority, to do whatever was necessary to assure the successful grant of the visa in exchange for a payment of CNY200,000.
Conclusion
The Tribunal finds, as conceded by Ms Weng, that NIC *3026 and the other 2018 documents were provided to the Department with the 2018 application. Based on the evidence above, it further finds that NIC *3026 and the other 2018 documents are bogus documents within the meaning set out in s.5(1) of the Act.
In determining whether Ms Weng gave the bogus documents or caused bogus documents to be given to the Department, the Tribunal has considered a statement provided by Ms Weng from her mother, Zhulin He, dated 18 April 2023. In that statement, written in Chinese and English, Ms He claims ‘by chance, I happened to meet a man who claimed himself as an agent and he helped many people getting Australian student visas successfully. As he was a reputable person in our hometown, I trusted him and introduced him to Huiwen consultation.’ This is yet a further variation on the story about Bojiao. She refers to the CNY200,000 and the genuine documents given by Ms Weng stating that as agreed they paid the cash when the visa was granted. After Ms Weng’s current application was refused, Ms He claims that she asked around and was told that the reason fraudulent documents were provided instead of the genuine documents was for a ‘better chance to get the visa approval as it was a norm that people from Fuqing City, Fujian had very least chance to get visa approval.’ She also states that because ‘he didn’t have any licence as he claimed, he couldn’t put himself as an agent in her visa application. Instead, he created an email account by using Huiwen’s name, an email account that Huiwen was never had any access.’
The Tribunal accepts that this is finally the most likely accurate account of what has occurred and the reason why Bojiao submitted bogus documents rather than the genuine documents, which do identify that Ms Weng’s Sanshan Town address is in Fuquing City, Fujian Province. However, for the reasons set out, the Tribunal finds that Ms Weng’s reckless indifference to how she acquired the 2018 Student visa means that she gave the bogus documents, or at least caused the bogus documents to be given, to the Department in relation to the 2018 application. That includes the Minister and an officer, being an officer of the Department or the delegate.
The Tribunal finds that there is evidence before it that Ms Weng has given, or caused to be given, to the Minister and/or an officer bogus documents in relation to a visa that she held in the period of 12 months before the current application was made.
Ms Weng does not meet PIC4020(1) of the Regulations.
Should the Requirements of PIC4020(1) be Waived?
The requirements of PIC4020(1) may be waived if the Tribunal is satisfied that there are:
· compelling circumstances that affect the interests of Australia;[21] or
· compassionate or compelling circumstances that affect the interests of an Australian citizen, and Australian permanent resident or an eligible New Zealand citizen[22]
that justify the granting of the visa.
[21] PIC4020(4)(a).
[22] PIC4020(4)(b).
The waiver is a two-staged inquiry:
· first, whether there are compelling circumstances within the meaning of PIC4020(4)(a) or compassionate or compelling circumstances within the meaning of PIC4020(4)(b), and
· if so, only then whether, when those circumstances are weighed against the severity of the applicant's fraudulent conduct, to exercise the discretion to waive the requirements of PIC4020(1) having regard to those circumstances.[23]
The discretionary matters in PIC4020(4) are unrelated to the content and reasons for the breach under PIC4020(1).[24] Accordingly, claims made in relation to PIC4020(1) do not need to be considered in relation to compelling or compassionate circumstances in the absence of relevant claims in relation to PIC4020(4). This does not mean they can never be relevant to the waiver, but the obligation is to consider the case as put by the applicant in relation to the waiver. The bogus documents and false or misleading information provided by Ms Weng may be a consideration at the second stage of the inquiry, but not in the first.[25]
[23] Kaur v MIBP [2017] FCAFC 184 at [26]; Singh v MICMSMA [2021] FedCFamC2G 109.
[24] Singh v MIBP [2016] FCCA 774 at [60].
[25] Gjecaj v MICMSMA [2022] FedCFamC2G 936 at [56].
The terms ‘compelling’ or ‘compassionate’ are not defined in the Act or Regulations. The determination of whether circumstances are compelling or compassionate is essentially one of subjective judgement[26] which takes into account all of the circumstances.[27] Having regard to the ordinary meaning, ‘compassionate’ means ‘having or showing compassion’ and ‘compassion’ is ‘a feeling of sorrow or pity for the sufferings or misfortunes of another; sympathy’.[28] Whereas ‘compelling’ means ‘demanding attention or interest; convincing’[29] and may include ‘to urge irresistibly’ and to ‘bring about moral necessity’. The Court has commented that ‘compelling circumstances’ are limited to those which have a special or strong persuasive force,[30] and, relying on earlier authorities, referred to circumstances ‘evoking interest, attention … in a powerfully irresistible way’, that ‘must be so powerful’,[31] or force or drive the Tribunal ‘irresistibly’ to be satisfied.[32]
[26] Kandel v MIBP [2015] FCCA 2093 at [32]. cf.Sharma v MIBP [2015] FCCA 2669 at [47]: a subjective judgment may be explained simply by a bald statement of conclusion but engaging in an active intellectual process of considering evidence and giving reasons for failing to waive PIC4020(1) is required to avoid acting unreasonably. See also MIAC v SZLSP [2010] FCAFC 108 at [91]. Bi v MIBP [2017] FCCA 2652 at [37] distinguished Sharma v MIBP [2015] FCCA 2669 but did not consider if it was wrongly decided.
[27] Anani v MIMAC [2013] FCCA 1140 at [34]. While related to s.41(2A) and r.2.05(4), it appears applicable to PIC4020(4). See also McNamara v MIMIA [2004] FCA 1096 per Whitlam J at [10].
[28] Macquarie Dictionary. Considered in Kaur v MIBP [2018] FCCA 1614 at [24].
[29] Macquarie Dictionary.
[30] Singh v MIBP [2016] FCA 156 at [20].
[31] Singh v MIBP [2016] FCA 156 at [21]-[22], citing Babicci v MIMIA [2004] FCA 1645 and Babicci v MIMIA (2005) 141 FCR 285.
[32] Singh v MIBP [2016] FCA 156 at [23]-[24], citing Plaintiff M64/2015 v MIBP [2015] HCA 50.
It is not sufficient for the purposes of the waiver that there are compelling or compassionate circumstances alone. The circumstances must affect the interests of Australia, an Australian citizen, a permanent resident or an eligible New Zealand citizen,[33] although a company is not an ‘Australian citizen’ for the purposes of PIC4020(4)(b).[34] The term ‘interests’ refers to any present or future state of affairs that is or may be of benefit or to the advantage of Australia or relevant person. The words ‘circumstances that affect’ requires a comparison between the position the relevant person will be in if the applicant is granted a visa, with the position if he or she is not.[35]
[33] Vyas v MIMAC [2013] FCCA 1226 at [14].
[34] Singh v MIBP [2016] FCA 156 at [16]-[17].
[35] Singh v MIBP [2017] FCCA 2461 at [29]-[32]. However, also see Kaur v MIBP [2017] FCAFC 184.
The Tribunal not only put the question of whether there are compelling or compassionate circumstances in this case to Ms Weng at the hearing, it also gave her an opportunity to make submissions on this question in its 5 April 2023 letter. She did not make any oral or written submissions that related to Australia or an Australian citizen, a permanent resident or an eligible New Zealand citizen. The Tribunal has taken into consideration all her evidence about compelling or compassionate circumstances generally, but it finds that none of that information provided relates to the interests of Australia or to an Australian citizen, a permanent resident or an eligible New Zealand citizen.
The Tribunal is not satisfied that in this case there are any compelling circumstances that affect the interests of Australia that would justify the granting of the visa. Nor is it satisfied that there are any compassionate or compelling circumstances that affect the interests of an Australian citizen, a Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa. It does not wave the requirements of PIC4020(1) pursuant to PIC4020(4) in relation to Ms Weng.
On the basis of the above, Ms Weng does not satisfy PIC4020 for the purposes of cl.500.217 of the Regulations.
Mr Shuowen Xue
Mr Xue applied for the visa as a member of Ms Weng’s family unit. Requirements to be satisfied by applicants who are members of the family unit of a person who has applied for the visa to study in Australia are set out in cl.500.3 of the Regulations. Clause 500.311 states that the applicant must be a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa.

Relevant to this matter, the definition of member of the family unit is found in r.1.12(6) which states that a person is a member of the family unit of an applicant for, or of a holder of, a Student (Temporary) (Class TU) visa if the person is:
(a)a spouse or de facto partner of the applicant or holder; or
(b)a dependent child of the applicant or holder, or of that spouse or de facto partner of the applicant or holder, who is unmarried and has not turned 18.
At the time of application, Mr Xue claimed to be, and was included in the application as, Ms Weng’s de facto partner.
Both Ms Weng and Mr Xue informed the Tribunal that their relationship has broken down and at the time of this decision Mr Xue is no longer Ms Weng’s de facto partner. But at the hearing, when the Tribunal asked Ms Weng about Mr Xue, she said that they had only been boyfriend and girlfriend not husband and wife, and they had never intended to marry. It was only after the Tribunal reminded her that Mr Xue had been added to the application as her de facto partner that she said she had intended the relationship to be forever. However, she continued to refer to Mr Xue as her ex-boyfriend and characterise the relationship that way.
Mr Xue chose not to appear at the hearing and so the Tribunal has been unable to test the question of the nature of his relationship with Ms Weng. The Tribunal is satisfied that the necessary consent has been given by Mr Xue under s.360(2)(b) of the Act and that, pursuant to s.360(3), he is no longer entitled to appear before it to give evidence and present arguments relating to the issues in his case.[36] The matter has, therefore, been determined on the evidence available to the Tribunal. Since the evidence from the parties is consistent and there is nothing to the contrary before it, the Tribunal accepts that if Mr Xue ever was Ms Weng’s de facto partner he no longer is and, consequently, at the time of this decision, he is not a member of her family unit.
[36] Hasran v MIAC [2010] FCAFC 40.
Mr Xue is not a member of the family unit of a person who holds a student visa having satisfied the primary criteria for that visa both because he is no longer a member of Ms Weng’s family unit and because she is not such a person. He does not satisfy cl.500.311.
Given these findings, the Tribunal finds that the criteria for the grant of Subclass 500 (Student) visas are not met. Ms Weng and Mr Xue do not claim to meet the criteria for Subclass 590 (Student Guardian) visas.
Accordingly, the decisions under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Mireya Hyland
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.
…