Australian Immigration Daily News

“…tell the truth, the whole truth, and nothing but the truth”

This quote, which is an extract from the oath that is administered to witnesses in American courtrooms, is of course familiar to everyone who has watched television dramas, from the days of the 1950s show “Perry Mason” all the way up to the present, and “Law and Order”.

And indeed, the direction to “tell the whole truth” applies with equal force both to visa applications that are made to the Department, and to evidence that is given to the AAT. In fact, when I am preparing witnesses who are nervous about giving testimony in court, it is always my advice to the witness that she/he should “just tell the truth, and you’ll be fine!”

All of this seems so obvious that it seems like it is barely worth saying – right? Well, if you read through the decisions of the Federal courts on Austlii, it doesn’t seem that it is so obvious after all. The reports on Austlii include case after case after case where visa applicants have submitted “bogus documents” to the Department, have run afoul of Public Interest Criterion 4020, and have had their visa applications refused.

So the recent post on this site by my colleagues at Migration Alliance, entitled “Be very afraid” (of PIC 4020) needs to be taken very seriously! Even though it would seem to be a simple and straightforward matter to avoid problems with PIC 4020, the case reports on Austlii suggest that the submission of “bogus documents” is one of the most common reasons why visa applications fail, or “get knocked back”.

It is really quite incredible that this keeps happening, and it is hard to understand exactly why. Perhaps it is the case that visa applicants do not anticipate, or do not understand, that it is very likely that the Department will seek to verify information that is given in support of visa applications. In this regard, that assumption is likely to be mistaken. As the cases reveal, the Department does check on the veracity of application materials (as it has every right to do!). Or perhaps it is the case that some visa applicants simply cannot satisfy the criteria for obtaining a visa, but in their eagerness to gain entry to Australia or to remain here they fall victim to the temptation to submit material that is not truthful. If that is ever the case, it is not, in my opinion, a very fruitful strategy, and is one that carries with it a high risk of “blowing up in the applicant’s face”.

Three cases that have recently come before the Federal Circuit Court – Fida-Ur-Rahman v Minister for Immigration & Anor, (2015) FCCA 2582 (17 September 2015), Maisuriya v Minister for Immigration & Anor, (2015) FCCA 2705 (4 September 2015) and  Patel & Anor v Minister for Immigration & Anor (2015) FCCA 2439 (18 August 2015) provide very typical examples of the kinds of cases where PIC 4020 has been fatal to visa applications.

The Fida-Ur-Rahman and Patel cases presented very similar issues. Both cases involved applications for student visas. In each case, the applicant submitted information that was supposedly from banks in their home countries to attempt to show that they could satisfy the criterion for having sufficient funds to pay their tuition and living expenses while in Australia. However, in each case the Department made inquiries with the banks in question, and was informed that the claimed accounts did not actually exist. So the false evidence concerning available funds – in other words, the “bogus documents” – caused each application to run afoul of PIC 4020 and to fail.

The third case – Maisuriya - is representative of another common kind of case involving “bogus documents – being altered test results. In Maisuriya, the applicant was seeking a Skilled (Residence) visa, subclass 885. She submitted a document purporting to be a copy of an IELTS test report to the Department with an IELTS reference number. This document indicated that the applicant had achieved a sufficient level of English language proficiency to satisfy the relevant criterion for approval of the visa. However, the Department asked the applicant to submit the original of the test report document. The Department arranged for this “original” test report to be reviewed by a forensic document examiner, and this review revealed that the test report had been altered in the applicant’s favour. The true test results were much lower than had been stated on the document that the applicant had provided to the Department, and were insufficient to satisfy the relevant criterion.

The applicant claimed that the IELTS test result had been altered by her cousin without her knowledge. This type of argument has been advanced so frequently that I believe that it is likely to be met with skepticism by the courts – somewhat equivalent to a claim that “the dog ate my homework”! In any event, it has repeatedly been held that an applicant does not need to know that a bogus document has been submitted to the Department, or that the applicant has somehow been “complicit” in attempting to perpetrate a fraud by submitting the bogus document, in order for PIC 4020 to be brought into play and to deal the “death blow” to the application. As was held in the leading case of Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 (4 April 2014):

“it is (only) 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”

Thus, an applicant is held to be responsible for the accuracy and truthfulness of documents that are submitted to the Department in support of a visa application – and this is so even in circumstances where the applicant argues that she/he was not aware that the documents were “bogus” or “untrue”.

These three cases provide a strong reminder that the time-worn proverb that was first devised by the American inventor and politician Benjamin Franklin: “Honesty is the best policy” really does apply to visa applications that are made to the Department. As I have mentioned in an earlier post on this blog, it should be relatively easy to avoid problems with PIC 4020. However, if for whatever reason a document that is “purposefully untrue” in given to the Department in support of an application, it can literally be a “ticking time bomb”!

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