(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;

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.

[1] Specifically, a Student (Temporary) (Class TU) visa ('the visa') under section 65 of the Migration Act 1958 ('the Act'). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary applicant applied for the former and none of the applicants claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

[2] See clause 500.217 of Schedule 2 to the Migration Regulations 1994 ('the Regulations') for the primary visa applicant and clause 500.317 for the secondary visa applicants. Both of these clauses require that student visa applicants must satisfy the public interest criterion 4020 ('PIC 4020'). In this case, the delegate found the applicants provided false and misleading information in relation to a material particular within the meaning provided in PIC4020 in Schedule 4 of the Regulations. A copy of the delegate's decision was provided to the Tribunal with the applicant's review application.

[3] Pursuant to sections 338(2) and 347 of the Act.

[4] Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61.

[5] In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].

[7] PIC 4020(5). See also Singh v MIAC [2012] FMCA 145 (Driver FM, 24 April 2012) at [68]; Kaur v MIBP [2014] FCCA 1264 (Llyod-jones J, 18 June 2014) at [80]-[81]; Singh v MIBP [2018] FCCA 1136 (Manousaridis J, 9 May 2018); and Khan v Minister for Immigration and Citizenship [2011] FCA 75 at [28] per Moore J.

[9] Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

[10] Trivedi v MIBP [2014] FCAFC 42.

[12] NAWZ v MIMIA [2004] FCAFC 199.

[14] See NAWZ v MIMIA [2004] FCAFC 199; Spurr v MIAC [2010] FMCA 996 o SZHVJ v MIAC [2009] FMCA 320 at [33].

[15] Sran v MIBP [2014] FCCA 37; Singh v MIBP [2014] FCCA 1816; Gill v Minister for Immigration and Border Protection [2016] FCAFC 142.

1. [16] Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 per Buchanan J (Allsop CJ and Rangiah J agreeing).
2. [17] Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 per Buchanan J (Allsop CJ and Rangiah J agreeing).
3. [18] Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 per Buchanan J (Allsop CJ and Rangiah J agreeing) at [43].

[19] Kaur v MIBP [2017] FCAFC 184.

[20] Plaintiff M64/2015 v MIBP [2015] HCA 50.

[21] Policy - [Sch4 4020] - Public Interest Criterion 4020 - The integrity PIC - Compelling and/or compassionate circumstances (re-issue date 1/1/18).

[22] Mudiyanselage v MIAC [2012] FMCA 887 where the Court noted it was open for the Tribunal to be guided by Department policy.

[23] ES at 19. The Court in Vyas v MIMAC [2013] FCCA 1226 found the ES to be of assistance in considering the plain words of the waiver provision such that it could not be said that it would be sufficient for the applicants to demonstrate that their circumstances were compelling or compassionate alone, but that there has to be a connection with Australia or an Australian citizen or permanent resident, or eligible New Zealand citizen, because otherwise there would be no utility in having those words in the clause (at [14]).

[25] Policy - [Sch4 4020] - Public Interest Criterion 4020 - The integrity PIC - Compelling and/or compassionate circumstances - Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).

[26] Policy - [Sch4 4020] - Public Interest Criterion 4020 - The integrity PIC - Compelling and/or compassionate circumstances Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).