Australian Immigration Daily News

Suppose a visa applicant submits a “bogus document” to the Department in support of her/his application: is the application “dead on arrival” due to the application of Public Interest Criterion 4020? 

What if the Administrative Appeals Tribunal determines that PIC 4020 should not be “waived”?  Is your client’s application “toast”? 

A case that came out of the Federal Circuit Court yesterday, 6 October 2015,Sharma v Minister for Immigration & Border Protection & Anor, (2015) FCCA tells us: “No, not necessarily. If the AAT did not engage in an “active intellectual process” in considering the applicant’s evidence, then it may very well be found to have committed jurisdictional error.  (Of course, the least that an applicant has a right to expect is that the AAT will engage in an “active intellectual process” and indeed, jurisdictional error may be found to exist not just in cases arising under PIC 4020, but with respect to any case where the AAT fails to engage in a proper assessment of the evidence). 

As RMAs will be aware, while submitting a “bogus document” is certainly a hazardous undertaking that can place a visa application in peril, simply submitting such a document is not necessarily “the end of the story”.  Subclause 4020(4) of the PIC empowers the Minister (Department) to “waive” the application of the PIC if there are “compelling circumstances that affect the interests of Australia” (4020(4)(a)) or if there are “compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen”  (4040(4)(b)). 

So, exactly what happened in the Sharma case? 

Well, first of all, it was clear that the application was “in trouble” due to the fact that bogus documents had been submitted.  The applicant was seeking a “Skilled (Provisional” (Subclass 485) visa. She had submitted work references to the Trades Recognition Authority in support of her claim that she had been employed as a cook at a restaurant for over 900 hours. The AAT (actually, the MRT as it was at the time of the hearing) found that the applicant’s evidence in regard to her work references was “confusing, contradictory and confusing”.

In particular, the MRT was troubled by the fact that the list of employees at the restaurant where the applicant claimed to have worked that was provided by her employer did not include the applicant’s name.  The MRT did not accept the applicant’s explanation that her name had been omitted from the list of employees because “she had argued with the owner over money and had not left on good terms”. 

On review, Judge Emmett of the Federal Circuit Court held that “credibility findings are a matter par excellence for the MRT”, and that it was thus open for the MRT not to accept the applicant’s account.  Accordingly, Judge Emmett was not prepared to overturn the MRT’s finding that the work references that the applicant had submitted to the TRA were indeed “bogus documents”.  

This aspect of the case instructs us that it will generally be extremely difficult (indeed, in most cases, actually “impossible”) to persuade the Federal courts to overturn an “adverse credibility finding” (or indeed, any other “finding of fact) by the AAT. It is my view that the only circumstance in which there may be “a prayer” of doing so would be where there is absolutely no evidence in the record before the AAT that would support the finding. In that case, it could be argued that there was “jurisdictional error” in the sense that the AAT’s conclusion was “without intelligible justification” and that no reasonable decision-maker would have arrived at the result. 

So then, in what respect did the MRT fail to engage in an “active intellectual process” in considering the applicant’s evidence in the Sharma case? 

The failure by the MRT occurred in connection with its consideration of whether the application of PIC 4020 should be waived, notwithstanding the fact that the applicant had been found to have submitted bogus documents to the TRA.  What happened was that the Tribunal’s decision did not go beyond “reciting” the evidence that the applicant had given in support of her argument that PIC 4020 should be waived 

This evidence was that: the applicant had a new partner who was an Australian citizen, with whom she had been living for a month; that her partner would “not be happy” if her visa application was refused; that her partner had “lived alone since he was young”; that the partner had had a drug problem but was now rehabilitated; that the applicant was working as a restaurant manager who was able to hire and fire staff, and that she had hired people who were refugees or Australian citizens. 

After reciting this evidence in its written reasons, the Tribunal simply stated that it was not satisfied that the requirements of PIC 4020 should be waived, or that compelling circumstances affecting the interests of Australia, or compelling and compassionate circumstances affecting the interests of an Australian citizen had been shown. 

What Judge Emmett found to be problematic, and which Her Honour determined to be reflective of a failure on the part of the Tribunal to engage in an “active intellectual process”, was that the Tribunal did not provide any reasons as to why it had reached its conclusion that the applicant had failed to demonstrate compelling and compassionate circumstances warranting a waiver of the PIC.  All that the Tribunal had done was re-state the applicant’s evidence and then give its conclusion that the evidence did not show that there were compelling and compassionate circumstances. 

Judge Emmett found that the Tribunal’s failure to engage in an active intellectual process of analyzing the evidence, or to provide any explanation as to why it considered that the applicant’s evidence fell short of demonstrating compelling and compassionate circumstances was “unreasonable” and thus amounted to jurisdictional error. Accordingly, Judge Emmett determined that the proper course was for the case to be remitted back to the Tribunal for re-consideration. 

The lesson of this case for RMAs is that it is essential to review adverse decisions of the AAT very thoroughly. In circumstances where the AAT has done nothing more than recite the evidence, and then states a conclusion without analysis or explaining its reasoning, then there might be a very good argument that jurisdictional error has occurred!  It might then be possible to go to the Federal courts and get the negative decision of the AAT overturned!

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