Australian Immigration Daily News

They say “timing in life is everything”. 

This time-worn saying certainly rings true in relation to migration law: it is so so important to sort out problems with the evidence at an early stage!

A recent case that came before the Federal Court, Faruque v Minister for Immigration and Border Protection (2015) FCA (9 November 2015) illustrates just how perilous it can be “not to get to the bottom of an issue” at the earliest possible time and to resolve any questions that the Department may ask concerning the accuracy or authenticity of documents that are submitted in support of a visa application. 

Because of Public Interest Criterion 4020, a visa application may be refused by the Department if the supporting information is false or misleading or if a document is “bogus”.  And if an applicant waits until after a merits review hearing is concluded before the Administrative Appeals Tribunal to come forward with evidence to show that the supporting information was not “purposefully false”, but that it contained errors due to an “innocent” or “clerical” mistakes, It may very well be “too late” to “save” the application.

At that point, the Federal courts may conclude that it is beyond their powers to overturn a decision by the Tribunal.  The applicant’s chances of getting the refusal of her/his visa reversed  may then boil down to seeking Ministerial Intervention, which may offer extremely limited prospects of success.

The basic facts of the Faruque case followed a pattern that has been seen in many other cases where   PIC 4020 has become an issue.  The applicant, a citizen of Bangladesh, was onshore in Australia and sought a student visa.  In order to address the criterion that she demonstrate financial capacity to pay for tuition and living expenses, a bank statement in her husband’s name was submitted to the Department. However, when an overseas post of the Department attempted to verify the information, the bank reported that the balances and transactions that were shown on the statement did not match its own records.

After it had conducted its checks with the bank, the Department wrote to the applicant to inform her that it suspected that the financial information was fraudulent, and inviting her to comment. However, neither the applicant nor her migration agent responded to this correspondence. Also, they did not at that point seek an extension of time to reply. 

The Department thus proceeded to refuse the application.

The applicant’s merits review case came before the Tribunal more than a year after the Department had written to her questioning the accuracy of the financial information that she had provided.  However, at the hearing before the Tribunal, the applicant still did not claim that the errors in the bank statement had been the result of an “innocent mistake”.  In fact, she conceded before the Tribunal that the information that had been provided “may have been incorrect”, and only qualified this admission by claiming that she had not known about the errors or inaccuracies in the bank statement.

The Tribunal then affirmed the Department’s refusal of the visa application. Following a “show cause hearing”, the Federal Circuit Court dismissed an application for judicial review. In doing so, the Federal Circuit Court relied on the holding of the Full Court in the case of Trivedi v Minister for Immigration and Citizenship (2014) FCAFC 42.  In that case, the Full Court ruled that it is not necessary for a visa applicant to be aware that a document or information is bogus, false or misleading in order for PIC 4020 to be applied.  Under Trivedi, it is sufficient that the document or information have the quality of “purposeful falsity”.

It was not until the case came before the Federal Court, on appeal from the decision of the Federal Circuit Court, that the applicant put forward any suggestion that the inaccuracies in the bank statement that had been submitted in support of her application might have been the product of a clerical or other innocent error on the part of the bank.  At that time, the applicant made oral submissions to the effect that she had been in contact with the bank since the time of the Tribunal hearing and that the bank had acknowledged to her that it had made errors on the statement that she had given to the Department.

By that point, there really was nothing that the Federal Court could do.  There was no basis on which the Court could find that the Tribunal had committed jurisdictional error.  The only evidence that was before the Tribunal was that the financial information that had been provided in support of the student visa application was false; there was no evidence before the Tribunal that the errors in the bank statement  were innocent mistakes attributable to the bank, as the applicant belatedly tried to argue before the Federal Court..

The Federal Court was therefore left with no alternative save but to dismiss the application for judicial review.  The Court observed that in the circumstances it was powerless to overturn the decision of the Tribunal, and that the applicant’s only alternative was to make an application to the Minister to intervene in her case.

There are two clear lessons to be drawn from this case:

1. Where it is necessary to submit documents from a third party to satisfy a criterion for the grant of a visa, every effort should be made to verify the authenticity and accuracy of the documents (such as bank statements) before they are submitted to the Department.  It would be well to confirm with an applicant whether they are satisfied that a bank statement or other record does in fact accurately and truly reflect their financial holdings with the institution.  This type of “due diligence” may help to prevent an applicant from becoming ensnared in PIC 4020 issues in the first place.

2. If the Department raises an issue concerning the accuracy or authenticity of documents or information, and an explanation is available that will resolve the Department’s questions, then make sure that the clarifying material is submitted to the Department promptly.  Waiting until after the Department has refused an application, or until after the Tribunal has held a hearing and issued a decision may very well be “too late in the process”. As happened in Faruque, the Federal courts are very unlikely to overturn the Tribunal in that situation.

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