Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

1. I refer to and repeat paragraphs 17-23 above.
2. Pages 20 and 21 of this application form, under the headings 'Student declarations' and 'Declarations' (respectively) state (inter alia) 'Warning: Giving false or misleading information is a serious offence'. In the latter section, the applicants declare they:
   1. have 'read and understood the information provided to them in the application';
   2. have 'provided complete and correct information in every detail on this form, any on any attachments to it'; and
   3. understand that if any 'false or misleading information has been provided with this application... the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.'
3. The applicant's work history is relevant to a visitor visa assessment of whether an applicant genuinely intends to remain in Australia temporarily and whether they genuinely intend to leave Australia after their visit. I consider the government letter dated 21 January 2023 filed by the applicant as set out in paragraph 23(b) would have influenced the decision to grant him his visitor visa.
4. The applicant's work history is also relevant to the criteria to be considered when deciding whether he should be granted a student visa in Australia including in relation to his incentives to return to his home country and the relevance and value any proposed study has to his future employment prospects.
5. On 25 September 2023, the applicant filed submissions with the Tribunal repeating the substance of his response to the Department's natural justice letter as set out in paragraph 23 above and claiming that both the pet care job and the government job were genuine employment, and he has not submitted bogus documents. He claims in these submissions that it was an inadvertent failure to mention his employment history and not deliberate and was not material to the outcome. He has filed a new letter from his employer at the government job dated 24 January 2023 which is not contained in the Department file for his student visa application stating that the applicant earns PHP18,875 per month and a letter from his employer at the pet care job stating that his annual wage as a sales associate is PHP312,000.
6. I find the applicant's evidence and submissions difficult to accept. The applicant left out meaningful aspects of his work history on both his visitor visa application and his student visa application including in his genuine temporary entrant statement.
7. Where an applicant is applying for a visa, it is incumbent on them to provide accurate information and provide details or the requirements relevant to the visas.
8. The Federal Court has held that it is not necessary for a visa applicant know of, or be directly involved in, any falsehood for PIC 4020 to be engaged.[7] However, an element of fraud or deception is necessary in order to attract the operation of PIC 4020.[8] In that case, Buchanan J states:

it is not necessary... to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.[9]

1. I consider the applicant knew, at a bare minimum, he had worked in the government job at the time of his student visa application and that he had worked in the pet care job at the time of his visitor visa application. I do not accept the evidence that the applicant's failure to disclose the government job in his student visa application form and genuine temporary entrant statement were inadvertent mistakes. I consider on the evidence before me that it is more likely than not that the applicant did not want his work history to impact his prospects of success in his visa applications and his non-disclosure was either deliberate or recklessly indifferent. I note the written submissions filed in this regard and have carefully considered them, but I do not find them persuasive.
2. The Tribunal Guidelines in relation to assessing credibility dictate that evidence is to be assessed in its entirety, not just in isolated parts.[10] The guidelines also state that Members should focus on what is objectively or reasonably believable in the circumstances. The Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.[11] Where evidence is incoherent, vague or lacking the detail or knowledge where greater detail or knowledge might be expected of a person in the applicant's claimed position, the weight placed on the applicant's evidence may be limited and the applicant's credibility may be questioned.[12]
3. False and misleading information provided in relation to previous visa refusals relates to a material particular of a visitor visa and student visa application as set out in paragraph 26 and 27 above.[13] This information may have been considered and then disregarded by the original decision makers but it is relevant to the criteria that must be considered when making a decision on a visitor or student visa application. The PIC4020 in Schedule 4 of the Regulations specifically states that 'information that is false or misleading in a material particular' means information that is false or misleading at the time it was given and that it was relevant to the criteria the Minister may consider when making their decision, whether or not the decision is made because of that information (emphasis added).
4. Taking the evidence as a whole, I find the applicant has provided false and misleading information within the meaning of Act and Regulations in his visitor visa application and in his student visa application.
5. I find that the applicant does not meet PIC 4020(1).

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

1. PIC 4020(2) requires I 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 3 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).
2. There is no evidence that the applicant has been refused a visa in the relevant period.
3. Therefore, PIC 4020(2) is met.

Should the requirements of PIC 4020(1) or (2) be waived in relation to the First Applicant?

1. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in Regulation 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances.[14]
2. The expressions 'compelling circumstances' and 'compassionate or compelling circumstances' are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied.[15] The ordinary meaning of 'compassionate' relates to feelings of sympathy, sorrow, pity or concern for others.
3. Guidance on circumstances that may amount to compelling or compassionate circumstances may be found in the Explanatory Statement to SLI 2011, No 13 ('ES') which introduced PIC 4020, and the Department's policy guidelines.[16] While not binding, the Tribunal may have regard to the Department's interpretation and examples of what may constitute compelling or compassionate circumstances.[17]
4. According to the ES it was intended that the granting of the waiver would relate solely to compelling circumstances affecting Australia's interests, or the compassionate and compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, not the interests of the visa applicant.[18] The types of circumstances that may involve compelling or compassionate reasons for waiving the requirements of PIC 4020 identified in the ES include:
   • family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);
   • that family members in Australia would be left without financial or emotional support; and
   • a parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period).[19]
5. In addition, the Department's guidelines suggest that there may be compelling circumstances affecting the interests of Australia if:
   • Australia's trade or business opportunities would be adversely affected were the person not granted the visa (noting that gaining employer sponsorship is not considered sufficient grounds for a waiver); or
   • Australia's relationship with a foreign government would be damaged were the person not granted the visa; or
   • Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.[20]
6. The policy states that compelling circumstances affecting the interests of Australia would not include circumstances where the non-citizen merely claims that, if granted the visa, they would work and pay taxes in Australia, pay fees to an education provider or spend money in Australia.[21]
7. No submissions or evidence has been filed regarding this issue.
8. I am not satisfied that, singly or cumulatively, there are compelling circumstances affecting Australia's interests, 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 grant of the visa.
9. For the above reasons, I am not satisfied that the requirements of PIC 4020(1) should be waived pursuant to PIC 4020(4).

1. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Representative for the Applicant: Mr Jesus Icao

**Migration Regulations 1994

1. (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the ART during the review of a reviewable migration 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;

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 applicant applied for the former and does not 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') which requires that student visa applicants must satisfy the public interest criterion 4020 ('PIC 4020'). In this case, the delegate found the applicant provided false and misleading information in relation to a material particular within the meaning provided in PIC4020 in Schedule 4 of the Regulations in relation to his student visa application which is the subject of this review and in his visitor visa application which he held in the twelve months prior to making his application for a student visa. 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.

[5] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025)

[6] EIZ20 [2023] FedCFamC2G 637, [69].

1. [7] Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 per Buchanan J (Allsop CJ and Rangiah J agreeing).
2. [8] Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 per Buchanan J (Allsop CJ and Rangiah J agreeing).
3. [9] Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 per Buchanan J (Allsop CJ and Rangiah J agreeing) at [43].

[10] Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, von Doussa, Moore and Sackville JJ, 7 November 1997); Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 per Sackville J, with whom North J agreed, at [50]; Sein v Minister for Immigration and Multicultural Affairs [2001] FCA 1579; (2001) 114 FCR 370

[11] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at 348.

[12] Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827 per Tamberlin J at [9], upheld on appeal, Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741; Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963 per Goldberg J at [20] to [23]; "T" v Minister for Immigration and Multicultural Affairs [2000] FCA 467 per Drummond, Matthews and Mansfield JJ at [27]-[47]

1. [13] Pursuant to clauses 500.212 and 600.211 of the Regulations and Direction 108 regarding student visas.

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

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

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

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

[18] 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]).

[20] 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).

[21] 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).