Australian Immigration Daily News

In today’s post, I will continue with my consideration of the question: “How much of a problem does Public Interest Criterion 4020 really present?” 

Readers of the blog will recall that in a post earlier this week, our colleagues at Migration Alliance called attention to two recent decisions of the Federal Circuit Court where a  failure to satisfy PIC 4020 had led to the refusal of visa applications.  In yesterday’s post, I presented a discussion of one of those cases,

Katragadda v Minister for Immigration & Anor.  Today, I turn to the second case, Sun & Ors v Minister for Immigration & Anor, (2015) FCCA 2479 (11 September 2015).

Like the Katragadda case, the decision in Sun does provide a “cautionary tale” about the pitfalls that may be presented by PIC 4020. There is no question that a failure to satisfy PIC 4020 can be absolutely fatal to the prospects of a visa application. This is graphically demonstrated by the outcomes in both Katragadda and in Sun – in each of these cases, the applications ran afoul of PIC 4020 and failed for that reason.  So, the title of the post by MA advising readers about the decisions, and the hazards to applicants posed by PIC 4020 – “Be very afraid” – is right on the mark.  RMAs that are assisting their clients must be alive to the perils that may be posed by PIC 4020.

At the same time, it is my opinion that the problems that surfaced in Katragadda (where it was falsely represented to the Department that the applicant had a skills assessment that had been performed by the Trades Recognition Authority) and in Sun should be able to be avoided 99.9% of the time.  What is needed is a healthy measure of care to ensure that all of the information and evidence that is given to the Department in support of a visa application is true and correct – and, as the outcome in Sun illustrates – that the documents that are submitted to the Department or to the Administrative Appeals Tribunal are not “bogus documents”.

So exactly what did happen in the Sun case that caused PIC 4020 to be applied?

The case involved an application for a “Business Skills (Residence) visa (Subclass 892). As mentioned in the Court’s decision, one of the criteria for this kind of visa is that the applicant must show that she/he has maintained direct and continuous involvement in a nominated “main business”.  The Departmental officer who reviewed the application was not satisfied that this criterion had been met, and therefore refused the visa application.  The Tribunal was also concerned with this question.  Thus, in reply to correspondence from the Tribunal, the applicant submitted a number of documents relating to the management of the main business and his role in the business.

This is where the applicant ran into difficulties.  As it unfolded, the Tribunal had access to applications for Business Skills visas that had been submitted by two other directors of the nominated business.  In some of the documents that had been submitted to the Tribunal in support of Sun’s application, the signature of one of the other directors was no longer present, and Sun’s signature appeared in its place.  In other cases, versions of the documents that had previously been given to the Department did not include Sun’s signature (while apparently those that were submitted to the Tribunal did have his signature). And lastly, some invoices that were purportedly signed by Sun were dated with dates when Sun had been outside of Australia.

A real problem, right? For sure! The Tribunal concluded that the documents were “bogus” because it “reasonably suspected” that they had been “altered by a person not authorized to do so”. It therefore concluded that the applicant had failed to satisfy PIC 4020, and hence affirmed the Department’s refusal of the visa application. 

In the judicial review proceedings before the Federal Circuit Court, the applicant attempted to challenge the Tribunal’s decision by arguing that it had improperly imposed the burden of proving that the documents that had been submitted to the Tribunal were “not bogus” on the applicant.  However, the Court rejected this argument.  It ruled that the question of where the burden of proving that a document is “bogus” should lie (in other words, whether the burden should rest with the applicant or with the Minister/Department) is irrelevant. In the Court’s view, the only question that matters under PIC 4020 is whether there is evidence that a bogus document has been given to the Tribunal (or Department). In the Sun case, the Court found that there was evidence that such bogus documents had been given to the Tribunal by the applicant.    

The applicant in Sun also challenged the decision of the Tribunal on the basis that the bogus documents that had been given to the Tribunal were not relevant to the visa criterion that was under consideration (the nature of the applicant’s involvement in managing the nominated business).  However, the relevant legal authorities are all to the effect that it does not matter whether the bogus documents are relevant to the visa criteria or not; all that matters is whether bogus documents have been submitted. If they have been, that fact alone will ring the death knell to the application.

In the Sun case, what came back to haunt the applicant was that the co-directors of his business had previously submitted the same documents that he sought to rely on to support his visa application. As a result, the Tribunal was in a position to compare the documents that had been submitted by the other directors with the documents that the applicant had provided, and to discover that the documents had apparently been altered. 

One of the lessons here is that it is essential for an applicant (and those advising her/him) to be aware of what documentary evidence has been provided to the Department in support of related or “other” visa applications, and to ensure that any documents that are given to the Department or Tribunal are exactly the same as those that have been previously submitted.  If documents that “should” be identical do not in fact “match exactly”, that circumstance is likely to give rise to reasonable suspicions that a “bogus document” has been submitted – and, in turn, to present a very significant risk that PIC 4020 will be applied adversely against the applicant.

Another lesson from this case is that, in the end, it should be truly easy to avoid any problems with PIC 4020: if an applicant does not submit any documents that are “bogus” (and does not otherwise provide information to the Department that is false or misleading in a material particular) then PIC 4020 will not come into play.

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837