Harsimran Kaur (Migration)

[2023] AATA 3525

Harsimran Kaur (Migration) [2023] AATA 3525 (19 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Harsimran Kaur
Mr Manmeet Singh
Miss Sucham Kaur

CASE NUMBER:  2111375

HOME AFFAIRS REFERENCE(S):          BCC2019/4251704

MEMBER:Jade Murphy

DATE:19 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 489 - Skilled - Regional (Provisional) visa:

·Public Interest Criterion 4020 for the purposes of cl 489.211 of Schedule 2 to the Regulations.

Statement made on 19 October 2023 at 3:47pm

CATCHWORDS

MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – false or misleading information given in relation to visa application – confidential adverse information that applicant never worked at claimed employer in home country and employer’s website created a few days before application made – departmental checks and other concerns raised – not declared that employer operated by applicant’s mother – website created due to increase in customers, with small budget and photos and text suggested by developer – little documentary evidence – small service business and cash payments – no evidence of fraud or deception and insufficient evidence to determine truth of allegations – positive skills assessment – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65, 359AA, 375A

Migration Regulations 1994 (Cth), Schedule 2, cls 489.211(1), 489.224, Schedule 4, criterion 4020(1), (5)

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Talukder v MIAC [2009] FMCA 223

Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 August 2021 to refuse to grant the applicants Skilled Regional Sponsored (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 26 August 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 489.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant met the requirements of Public Interest Criterion (PIC) 4020 as required by cl 489.211.

3. The applicants appeared before the Tribunal on 26 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   REQUESTS FOR HEARING POSTPONEMENT

5. On 28 June 2023, the Tribunal invited the applicants to attend a hearing on 26 July 2023 to give evidence and present arguments regarding their application for review.

6. On 29 June 2023, the applicants wrote to the Tribunal and requested a six-month postponement as the second named applicant, Mr Manmeet Singh, had suffered a detached retina three months earlier.

7. On 14 July 2023, the Tribunal wrote to the applicants and advised that after careful consideration the Tribunal was not minded to postpone a hearing in this matter for six months. It considered this to be too long a delay. The Tribunal noted that there was no medical evidence provided with the request, and in the circumstances described by the applicant it was not known whether the constraints as cited would be alleviated with the passage of time.

8. On 14 July 2023, the applicants again wrote to the Tribunal and requested a three-month postponement and attached a medical certificate dated 3 July 2023 for the second named applicant, Mr Manmeet Singh, advising that he was unable to work between 22 March 2023 and 3 July 2023.

9. On 14 July 2023, the Tribunal wrote to the applicants and advised that again, it does not consider that a further three-month delay of the matter is warranted in the circumstances. The Tribunal advised it had considered the medical evidence provided and advised that it did not state why the primary review applicant (or indeed also Mr Singh) could not attend a Tribunal hearing of relatively short duration. In these circumstances the Tribunal placed little weight on the medical evidence and placed greater weight on its responsibility to ensure merits review proceedings are conducted fairly, but also in a quick, efficient and economical way. The Tribunal confirmed the hearing remained as scheduled on 26 July 2023.

   NON-DISCLOSURE CERTICATE AND ADVERSE INFORMATION

10. At hearing, the Tribunal told the applicants that a non-disclosure certificate had been issued by the Department pursuant to s 375A of the Act. The Tribunal told the applicants that it considered the certificate to be validly issued because it protected the identity of a confidential source of information and it would therefore not be in the public interest to disclose the documents subject to the certificate. The Tribunal confirmed that it protected the release of five specific documents, but that only two of them contained adverse information, which would be put to them. The applicants were given a copy of the certificate and asked whether they would like to make any submissions regarding the release of the information. The applicants confirmed that they did not.

11. The Tribunal proceeded, pursuant to s 359AA of the Act, to provide particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicants to comment on or respond to the information.

12. The particulars of the information were that on 24 November 2019 and 7 January 2020, the Department received information from a confidential source (protected by the aforementioned s 375A certificate) that informed them that the primary visa applicant never worked at Aura Boutique as a Tailor or Dressmaker; rather she had been a ‘house-maker’ since her marriage in 2012 onwards. Additionally, the information states that the Aura Boutique website for which the primary review applicant claimed experience points was created a few days before she filed her application.

13. It was explained to the applicants that this information is relevant to their review because it calls into question the truthfulness of the claimed employment and it is a requirement for the grant of this visa to satisfy PIC 4020, which means that there must be no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal or a relevant assessing authority, 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. The Tribunal told the applicants that if it relies on this information in making its decision, it may lead it to believe that the applicant gave or caused to be given to the Department, and the Tribunal, information and bogus documents in the form of statements claiming employment, an employment reference letter and pay slips that are false or misleading in a material particular in relation to the application for the visa, and that the applicant therefore does not satisfy PIC 4020 and cl 489.211.

14. The Tribunal asked the applicants if they required additional time to comment on the information, to which they advised they did. The hearing was adjourned. Following a brief adjournment, the applicant returned to the hearing room and the Tribunal asked them whether they would like to respond to the information put to them. They advised they would. 

15. The applicants told the Tribunal that they suspected it was their former sister-in-law who had provided the Department with the information. The applicants told the Tribunal of the circumstances surrounding the breakdown in the family relationship.

16. The Tribunal notes that there was no documentary evidence given to the Department at the time of the provision of information to the Department, and likewise the applicants had no documents or further evidence to support their submissions before the Tribunal. The Tribunal considers there is insufficient evidence either way to determine the motive and truthfulness of the allegations made and as a result has considered that, out of an abundance of fairness to the applicants, it is reasonable to disregard the adverse information as identified, and to assess the review only on the strength of the actual information and evidence before it regarding whether the applicant has given or caused to be given a bogus document, or information that is false or misleading in a material particular.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 489.211 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 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: 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).

18. 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 a material particular?

19. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

20. 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.

21. 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 refusal decision

22. As set out in the delegate’s decision, the delegate found that the applicant did not meet the requirements of PIC 4020 because the delegate found that she had given, or caused to be given, a bogus document or information that is false or misleading information in relation to this visa application.

23. The delegate noted that on 26 August 2019 the applicant made an application for a Subclass 489 visa for the nominated skilled occupation of Dressmaker or Tailor (ANZSCO 393213). In support of this application, the applicant claimed overseas employment as a Custom Tailor with Aura Designer Boutique Country in India from 30 June 2010 to 2019, with a brief break in 2018.

24. In support of the claims, the applicant submitted to the Department:

    ·Employment reference letter dated 11 January 2019.

    ·Appointment letter dated 27 May 2010.

    ·Series of salary slips spanning 2010 to 2019.

    ·Series of salary certificates dated from 2011 to 2018.

    ·Income Tax Returns for 2015 to 2019.

    ·Acknowledgement of Receipt of ITR-V for the assessment years 2013/2014 to 2018/2019.

    ·Letters from her accountant dated 12 February 2019.

25. The delegate noted that the Department assessed the claimed employment against the documentary evidence provided and noted that several concerns were raised regarding the truthfulness of the applicant’s claims, including information received by the Department on multiple occasions that the applicant has never worked as a dressmaker/tailor and has made up the claims to have had employment to obtain a skilled migration visa.

26. The delegate noted that departmental officers undertook several checks regarding the applicant’s claimed employer and found the following:

    ·The business website was created in 2019, whereas the business claims to have been operating since 2010.

    ·The photos on the website were of a high quality for a small business, and further searches found these photos had been obtained from another website. It was found that they are present on Pinterest and other dress boutiques.

    ·The wording on the company website is identical to another fashion company website that was created in 2011.

27. The delegate noted that on 19 May 2020, the applicant was invited to comment on the adverse information and in the response, she provided:

    ·A letter from herself advising of documents provided in response to the natural justice letter.

    ·A statement from Amarjit Kaur of Aura Designer Boutique.

    ·A statement from Councillor Bhajan Singh Dang.

    ·A statement from Ek Noor Sewa Kendra (Regd), signed by Barjinder Singh (sic).

    ·Photos.

28. The delegate noted the submissions from the statement provided by Amarjit Kaur, owner of Aura Designer Boutique, in which she acknowledged the website was not created until 2019 as it coincided with an increase in customers, which provided an incentive to establish an online presence. She stated she was not aware that the photos on her company’s website were taken from other sites and that the photos had been obtained by the website developer. Similarly, she stated that the wording on the website had been suggested by the website developer and she found them relevant to her business. The delegate did not accept either explanation given there was no evidence in support and, in relation to the photos, found that the owner would or should have been aware that the images were not of products created by her business.

29. The delegate noted that the owner, Amarjit Kaur, is the applicant’s mother, which had not been mentioned by the applicant previously. The delegate placed unfavourable weight on this finding as it raised concerns that Amarjit Kaur provided a false employment reference and website to assist her daughter to obtain a migration outcome.

30. The delegate noted the statements of Councillor Bhajan Singh Dang and Ek Noor Sewa Kendra (Regd) but placed little weight on them given there was no evidence provided to support them.

31. The delegate also noted that they placed little weight on the photos provided, finding that they were taken in a very short timeframe, if not the same day, and that they gave little insight into the applicant’s claims to employment.

32. In summary, the delegate noted that serious concerns were raised regarding the following:

    ·Inconsistencies within the employer’s website with no plausible explanations.

    ·Lack of documentary evidence of the operation of the business and the applicant’s position and duties with the business.

    ·Lack of evidence of the applicant being paid by the business (pay slips indicate payment in cash).

    ·The business, in that it appears to be operated by the applicant’s mother.

33. The delegate stated that as a result, they were not satisfied that the applicant worked as a Custom Tailor with Aura Designer Boutique as claimed. Therefore, the delegate was satisfied the applicant had provided, or caused to be provided, false or misleading information in her visa application and the employment documents submitted, specifically in relation to her claims of employment with Aura Designer Boutique as a Custom Tailor to meet overseas employment points, which is material particular to cl 489.224. As the delegate was not satisfied the applicant met PIC 4020(1), they found the applicant had failed to meet cl 489.211(1).

34. The delegate also noted that the applicant had not claimed that any compassionate or compelling circumstances exist that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen. Despite this, the delegate stated that they assessed the application in its entirety, and they were satisfied that no compelling circumstances affecting the interest of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen exist. Accordingly, they were also satisfied that the applicant does not meet PIC 4020(4).

35. At hearing, the Tribunal confirmed the above with the applicant, and noted the written submissions provided prior to hearing and the accompanying attachments. The Tribunal noted the written statement provided by the applicant on 18 July 2023 in which she acknowledged that the website was made on a very low budget and speculated that the website developer may have used photos not verified by her mother, and that the photos and description of services were only for reference. The applicant stated there was no intention to copy another website. The applicant stated that she never intended to hide the fact that Amarjit Kaur, the owner, is her mother and that she relies on the positive skills assessment obtained by Trades Recognition Australia (TRA), which she submitted was provided based on her cash pay slips. The applicant also stated that she has a six-year-old daughter who has been in Australia for the past four years and that her husband is receiving ongoing medical treatment for his eye at the Royal Victorian Eye and Ear Hospital. The applicant submitted that her husband’s treatment and recovery may be affected elsewhere.

    The applicant’s evidence at hearing

36. At hearing, the applicant was asked to comment on the delegate’s concerns as expressed in the Decision Record, and as set out above.

37. The applicant responded that she did not have anything to add in oral testimony that was not outlined in her written statement to the Tribunal.

38. The applicant’s husband, Mr Manmeet Singh, asked if he could make submissions to the Tribunal. The Tribunal told him it would take oral testimony from him. Mr Singh told the Tribunal that the applicant’s mother had been trading in ‘cutting and tailoring’ for many decades and that the applicant had grown up watching her mother stitch clothes throughout her childhood. He told the Tribunal that the applicant had wanted to follow her mother’s trade, and this was the reason the applicant completed a Bachelor of Science in Fashion Design (evidence of this qualification was provided to the Tribunal). Mr Singh told the Tribunal that when the applicant’s mother decided to open a small shop, the applicant was employed there and did all the stitching there for years. Mr Singh told the Tribunal that in India most small stores and businesses still pay their employees in cash, which explained why the applicant had provided cash payslips to the assessing authority for her skills assessment. Mr Singh submitted that the customers in the shop all pay cash too and it is still very much a cash economy amongst small shops in India. Mr Singh told the Tribunal that the pay slips were accepted by TRA and the applicant’s skills assessment was successful. Mr Singh also submitted that they had never been asked whether the applicant’s employer was her mother but maintained that they had never attempted to hide this fact, they had just not known that it had to be expressly pointed out to the Department.

1. Regarding the delegate’s concerns with the claimed employer’s website, Mr Singh maintained that they had explained to the Department when they queried the website that it was a cheap website for a small shop in India. The shop decided to create a website because some customers had been asking for one, but the applicant’s mother had not allocated the job a big budget and she had looked for a cheap developer. Mr Singh stated that the pictures of clothes featured on the website might well have come from other places and it was never purported to indicate that the shop sold those particular garments, particularly given that it is not a clothes shop, but is a shop that sells tailoring and stitching services. It was simply a reference picture to add some colour to the website. Mr Singh stated that the website listed the particular services that the shop offered. Mr Singh responded to the delegate’s concern that only a handful of items appeared in the photographs from the shop by explaining that it is a small shop and they do not sell clothes; they sell tailoring and stitching services which is why there is not much stock in the shop as items are made to order and are then given to the customer. Mr Singh agreed with the delegate that the pictures were taken on the same day. Mr Singh submitted that they had not been aware that they should have taken photographs on different days, but they had never intended to do that to hide anything, and they believed they were doing what was asked of them.

2. The Tribunal asked the applicant whether she could provide more specific details or information regarding her claimed employment. The applicant told the Tribunal that when she worked for her mother, customers would sometimes bring their own fabric into the shop and the applicant would give them ideas and sketches and sometimes computer-generated images of a similar design or look. The applicant submitted that sometimes customers would bring in their own accessories and sometimes she would go to the market to bring them for their clothes. The applicant said that once the customer had agreed on the proposed design, the applicant would start to ‘stitch and cut the design.’ The applicant told the Tribunal that if it was a simple design, she would complete the garment within one to two weeks, and if it was more complicated it might take her up to one month. The applicant told the Tribunal that her mother would check the fabric and told her where she needed to improve and would approve the applicant’s work. Once her mother had approved the garment, the applicant stated that it would be ready to be given to the customer.

3. The Tribunal asked the applicant if she could provide any examples of her work. The applicant responded that she relied on the references provided that attest to the work she completed at the relevant time, most notably from the Consulate’s wife who provided a sworn statement.

   Findings

4. The Tribunal has considered the circumstances in which the Department formed its conclusions that the applicant’s claims of employment with Aura Designer Boutique Country as a Custom Tailor in India from 30 June 2010 to 2019, and the employment documents provided in support, including an employment reference, photographs and cash pay slips, were false and misleading.

5. The Tribunal understands the concerns raised by the delegate, particularly in circumstances where there is little documentary evidence to support the applicants’ submissions. However, the Tribunal notes the oral testimony of Mr Singh as outlined above and found his oral testimony particularly persuasive. The explanations given regarding the delegate’s concerns over inconsistencies presented on the employer’s website were reasonable, logical and believable. Mr Singh’s evidence was significantly detailed and provided a sensible explanation in response to the delegate’s concerns. The Tribunal, while acknowledging there is little documentary evidence favourable to the applicant, similarly acknowledges that there is no documentary evidence demonstrating that anything the applicant has said or provided is false or misleading. In these circumstances, the Tribunal prefers to rely on the testimony of Mr Singh and accepts his explanation and reasoning in response to the the delegate’s concerns.

6. In taking this approach, the Tribunal has considered the matter of Talukder v MIAC & Anor [2009] FMCA 223, in which His Honour Driver FM found:

   … that the clause requires something more than mere existence of information suggestive of falsity. It requires some probative information. In other words, a decision maker cannot simply take any information suggestive of falsity as sufficient for the purposes of the clause. The decision maker must satisfy himself or herself that the information is acceptable as evidence pointing to false or misleading information having been given for the purposes of establishing the validity of the visa application and that the falsity or misleading information was material to the visa application.

7. The Tribunal considers the words of Driver FM particularly pertinent in this matter and considers that the adverse information, as well as the inconsistencies raised by the Department regarding the employer’s website, the fact the former employer was the applicant’s mother, and a general lack of documentary evidence all give rise to a suspicion of falsity at best, which is not, in the Tribunal’s view, enough to sufficiently establish that the applicant gave false or misleading information for a material purpose regarding this visa application.

8. The Tribunal accepts Mr Singh’s sworn evidence and places significant weight on his testimony regarding the applicant’s employment with Aura Designer Boutique as a Custom Tailor. In addition, the Tribunal places favourable weight on the reference letter provided by the applicant’s mother and does not share the delegate’s concern that simply because the former employer was the applicant’s mother, this means it was not genuine. There is no other information that demonstrates this to be true. Again, it is a suspicion at best. The Tribunal also relies on the reference statements from former customers, and the applicant’s detailed and spontaneous account of the duties she performed during her claimed employment. The delegate’s concerns that the applicant was paid in cash, the business’s website was flawed and that there is little documentary evidence to support the applicant’s claims are valid, although for a small dressmaking shop in India, the Tribunal finds the explanations given by Mr Singh in his testimony to be reasonable in this context. The Tribunal does not share the delegate’s concerns that the existence of these issues demonstrates that the applicant has provided false or misleading information regarding the claimed period of employment.

9. The Tribunal has formed the view that the employment documents provided by the applicant are not bogus documents, and that her claim of employment with Aura Designer Boutique was not false or misleading in a material particular. 

10. An element of fraud or deception is necessary to attract the operation of PIC 4020: Trivedi v MIBP [2014] FCAFC 42. The Tribunal finds that there is no evidence before it of any fraud or deception in this instance.

11. The Tribunal finds 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 a medical officer of the Commonwealth, a bogus document and/or information that is false or misleading in a material particular in relation to the visa application or reviews held in the 12 months before the visa application was made.

12. Therefore, the applicant meets PIC 4020(1).

    Has a visa previously been refused based on a failure to satisfy PIC 4020(1)?

13. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing three years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

14. There is no information before the Tribunal to suggest the applicant or any member of the family unit (as defined in reg 1.12 of the Regulations) has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1).

15. Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

16. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There is nothing before the Tribunal to suggest the applicant’s identity is an issue.  

17. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused based on a failure to satisfy PIC 4020(2A)?

18. PIC 4020(2B) requires that neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

19. There is no information before the Tribunal to suggest that the applicant or any member of the family unit (as defined in reg 1.12) has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

20. Therefore PIC 4020(2B) is met.

21. Based on the above, the applicant does satisfy PIC 4020 for the purposes of cl 489.211.

    DECISION

22. The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 489 - Skilled - Regional (Provisional) visa:

    ·Public Interest Criterion 4020 for the purposes of cl 489.211 of Schedule 2 to the Regulations.

    Jade Murphy
    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.

    …