Australian Immigration Daily News

It is a common requirement for many classes of Australian visas that the applicant demonstrate a satisfactory level of proficiency in the English language. This is particularly true in the case of applications involving the skilled migration program.  Indeed, it stands to reason that there would be an expectation that persons seeking to take up skilled employment in Australia would have sufficient English language skills to function effectively in the workplace, and that the substantive requirements of the migration legislation would reflect and embody this expectation.

The evidence that is most usually relied on by visa applicants to demonstrate that they have the required level of ability in English is the “IELTS” (International English Language Testing System) test.

This test is widely administered both in Australia and overseas. The test assesses the English language skills of visa applicants against four “bands”, listening, reading, writing and speaking.  Applicants who undertake the IELTS test are provided with a “test report form” which can be submitted to the Department of Immigration and Border Protection as evidence of their ability in English. 

The Department has access to an “online verification system” which enables it to verify the accuracy of the test report forms.  Therefore, the Department has the capability to determine whether the IELTS test reports that it receives in support of a visa application in fact accurately state the results that a visa applicant has received on the test.

The perils of submitting a false IELTS test result has been dramatically illustrated in recent judgments of the Federal Court of Australia.  These decisions hold that submitting a false test report will cause an application to run afoul of Public Interest Criterion 4020. This Public Interest Criterion enables the Department to reject a visa application that relies either on a “bogus document” or on “information that is false or misleading in a material particular”.  The Federal Court cases confirm that submitting a false test result is a valid grounds for refusal of the visa application.

The most recent of the Federal Court decisions was handed down on 3 March 2015, in the case of Patel v Minister for Immigration and Border Protection (2015) FCAFC 22. In this case, the applicant sought what was known at the time of the making of the application in 2009 as a “Skilled (Residence) visa”. The IELTS test report form that was submitted with the visa application stated that the applicant had achieved scores of 7, 7, 7.5 and 7, respectively, for the listening, reading, writing and speaking elements of the IELTS test.  However, the IELTS online verification system indicated that the test results were significantly lower (4.5, 4, 4.5 and 4) and were below the threshold of English language competency required for the grant of the visa.

It is noteworthy that even though the applicant provided a Statutory Declaration in which she denied that she had herself personally altered or forged the results stated in the IELTS test report. The Federal Court nonetheless found that her visa application had been properly refused by the Department, and that the visa refusal had also been properly affirmed by the Migration Review Tribunal.  Moreover, because the basis for refusal of the visa application was that PIC 4020 had not been satisfied (due to the submission of a test result which was considered  to be “bogus”, the Court concluded that the MRT had properly refused to grant the applicant another opportunity to sit the test.

The decision in Patel that is discussed above follows and applies the holding of the Federal Court in a similar, earlier, case, Trivedi v Minister for Immigration and Border Protection (2014) FCAFC 42 that was handed down on 4 April 2014.

In the Trivedi case, the applicant originally took the IELTS exam at a testing centre in India. She failed to get a sufficiently high score to qualify for the visa that she was seeking. She then went to another test centre, also in India.  The applicant submitted this second test report to the Department , which showed “passing” test results, in support of her application. However, the Department’s check of the IELTS online verification service indicated that the applicant’s scores were actually lower than those stated on the test report.  Consequently, the Department refused the visa application was refused.

The applicant appealed the refusal to the MRT. In her evidence before that Tribunal, the applicant stated that she had had a conversation with a person who was administering the second IELTS test that she took in India, during which this person had allegedly said that he would “fix up” the test result for her.

In its decision in Trivedi, Chief Justice Allsop held that it was not necessary for the Department to demonstrate that there had been “knowing complicity” on the part of the applicant in submitting a “bogus document” (such as a false IELTS test report) in order for the application to be refused for failing to satisfy PIC 4020.  Furthermore, His Honour held that the purpose of PIC 4020 is to provide “a bulwark against fraud and deception from any quarter associated with a visa applicant” and thus “to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the visa application” (emphasis added).

The lesson that is imparted from the companion decisions in Patel and Trivedi thus could not be more clear: it is the obligation of visa applicants to make sure that all documents and information that is supplied to the Department is completely accurate and truthful in all material respects. The consequence of providing false documents – even if prepared by a person other than the applicant and without the applicant’s knowledge and involvement – is that the visa application will be at risk of refusal. 

Of course, the refusal of an application can impact not only the future life of the primary applicant, but also the lives of secondary applicants, such as spouses/partners and children.  Thus, the impact of a failure to comply with the criteria of PIC 4020 can be extremely serious for an entire family unit. For that reason, the visa applicant must be absolutely scrupulous to personally review all materials that will be submitted  to the Department. 

In the case of IELTS tests,  the outcomes in the Trivedi and Patel cases suggest that applicants should be careful to confirm that the test report conforms with their own knowledge of their English competency. If, for whatever reason, the result that is stated on the IELTS test report seems “too good to be true” (in light of the applicant's own knowledge of her/his English language skills), the applicant should (before submitting the test report to the Department) take independent steps to confirm with IELTS that the report does indeed accurately reflect and state the test results.  If it does not, the applicant would be most unwise to submit an incorrect test result to the Department.

Further, if any person makes an offer to an applicant to "fix up" an IELTS test result, the applicant should be mindful that the person who is making this "offer" is not, ultimately, doing the applicant any "favour". To the contrary, such an action is bound to "backfire" very seriously and can quite literally ruin the chances of the applicant and their family to be in Australia.

The judgments of the Full Court of the Federal Court of Australia in the Patel and Trivedi cases can be found at the following links:

Patel :http://www.austlii.edu.au/au/cases/cth/FCAFC/2015/22.html 

Trivedi: http://www.austlii.edu.au/au/cases/cth/FCAFC/2014/42.html

      This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, MARN 1386469, Web: www.concordialaw.com.au, Tel: (02) 8068 8837, Email:   This email address is being protected from spambots. You need JavaScript enabled to view it.