Australian Immigration Daily News

“Tell the truth, the whole truth, and nothing but the truth”!

This admonition, given to potential witnesses about their paramount obligation when giving evidence in court cases, applies with equal force to visa applicants.

It is absolutely essential that visa applicants be entirely truthful in the information and documents that they provide to the Department in connection with a visa application. This obligation is stated expressly in section 101(b) of the Migration Act, which provides that a non-citizen must complete his or her application form in such a way that no incorrect answers are given or provided. The consequence of providing incorrect information on a visa application may be that the visa may be cancelled under section 109 of the Act. And under section 48, a person whose visa has been cancelled may only be able to re-apply for a very limited types of visas.

So the consequences of giving incorrect information on a visa application can be very dire indeed.

A visa applicant certainly cannot count on the fact that the Department won’t check the information that she/he submits on the application. And an applicant cannot hope to avoid visa cancellation by claiming that she/he had “nothing to do” with the preparation of the visa application, and that they “left the whole things in the hands of their migration agent”.

As the decision of the Full Court of Australia in the case of Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 (4 April 2014) held, an applicant may be held responsible for assuring the truthfulness of the information that is provided with the application, even in circumstances where the applicant did not actually know that the information was false and had no involvement in providing the false or incorrect information to the Department.

The hazards associated with providing incorrect information on a visa application were graphically illustrated by a case that was handed down by the Administrative Appeals Tribunal last week, 1508152 (Migration) (2015) AATA 3658 (19 November 2015).

In this case, the Department cancelled a Subclass 189 – Skilled – Independent visa due to false information having been provided on an application form, and the AAT affirmed the Department’s decision.

To make matters worse, the visa holder had lodged an application for Australian citizenship after he had received notification from the Department that it considered that some of the information that he had provided on his visa application was not correct.

So, in this case, the submission of incorrect information caused “everything to become unraveled”: it resulted not only in the cancellation of the 189 visa, but it undoubtedly doomed any chance the visa holder might have had of getting his citizenship application approved.

So exactly what did the applicant do wrong in this case?

On the visa application, it had been indicated that the visa holder had obtained a skills assessment from the relevant skills assessment authority for his nominated occupation of “accountant” and that he had also undertaken an IELTS test which resulted in the characterization of his English language proficiency as being “superior”.

However, following the grant of the visa, CPA Australia advised the Department that it had no record in its database of a skills assessment having been done for the applicant, no record of the reference number for the skills assessment that had been provided to the Department, and not even any record of the applicant’s name.

Similarly, checks that were undertaken by the Department with the IELTS Report Verification Service revealed that there was no record of the applicant’s having ever undertaken an IELTS test, no record of the reference number for the test that had been provided with the application, and no record of the applicant’s name in the IELTS database!

(One might have cause to wonder why the Department did not make inquiry to confirm the authenticity of the skills assessment and the IELTS score before the 189 visa was granted – however, there is no discussion in the AAT’s decision about why this did not occur).

So, exactly what did the visa holder have to say when he was confronted with the notice that incorrect information has been provided with his application?

I might expect readers of this article to chime in with something like: “My dog ate my homework” or something of the sort. Well, what did occur was that the visa holder tried to place the blame on “his migration agent”. However, in this case, the Tribunal member was not having “a bar” of the visa holder’s story.

What the visa holder claimed was that while he was studying at TAFE, he had met a migration agent at a coffee shop who had told him that he could obtain a skilled visa for $70,000. The applicant also told the Tribunal that he had given the “agent” this money on a public street, outside a Medicare office, and that the payment should have been recorded on the Medicare office’s closed circuit television. The visa holder was not able to produce any evidence to prove that the transfer of the funds to the “migration agent” had ever occurred.

Very unsurprisingly, the Tribunal rejected the visa holder’s story. It found it implausible that the visa holder would have paid a migration agent who was essentially a stranger $70,000, that the payment of such a large amount of money would have been given to the “agent” in cash in a public street, and that the visa holder would be unable to produce any documents at all to show that he had access to these funds.

At the hearing before the Tribunal concerning the cancellation of the visa, the visa holder was assisted by a registered migration agent. The agent made the following written submissions:

“(The visa holder) has been a victim of departmental fraud and he should not be made a scapegoat for his naivety and trust in those who purport to be migration advisers. Fraud was perpetrated by his consultant and by the Department. Our client was not complicit in any fraud perpetrated by the parties but as he has claimed he has been a victim in this matter”

I will venture my opinion that submissions of this nature, to the effect that a client has been “a victim of fraud by the Department” are highly unlikely to be successful, especially in a case of this kind where there is evidence that incorrect claims concerning the results of skills assessments and IELTS test results form the basis for the underlying visa cancellation (in other words, certainly at least the appearance of fraud on the part of the applicant!)

Moreover, even if it could have been proven that the visa holder did not know about or participate in the submission of the inaccurate claims to the Department, under Trivedi that argument would never have been sufficient to salvage the client’s position.

So what is the moral of this case? As Shakespeare would say: “the truth will out”. Even if the Department does not discover that inaccurate information has been provided before it grants a visa, there is every chance that such information will be brought to the Department’s attention at some point. And if it does, the visa holder’s entitlement to remain in Australia may be in very great peril!!

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