Australian Immigration Daily News

One might think that once an applicant has been granted a subclass 189 visa for independent skilled migration, their future in Australia is all “blue skies” and “clear sailing”: at that stage, they would have a right to permanent residency in Australia and would likely be on a pathway to Australian citizenship, as would any family members included in their visa application.

Right? 

Well, a recent decision of the Administrative Appeals Tribunal illustrates that “it ain’t necessarily so”: 1509158 (Migration) (2016) AATA 3022 (11 January 2016). 

In fact, what this decision tells us is that submitting false or misleading information to the Department is truly a “double-edged sword” that can work against an applicant in two ways:  Not only can giving such incorrect information to the Department cause an application to run afoul of Public Interest Criterion 4020, and result in the refusal of the application in the first instance; it can also lead to the cancellation of a visa under section 109 of the Migration Act as well. 

So, it isn’t just committing a serious criminal act and thus getting one’s visa cancelled on character grounds that can land a visa holder in “hot water” (or as the first President George (H.W.) Bush so famously and politely put it “deep doo-doo” (!!!). Providing incorrect or false information on a visa application, in contravention of section 101 of the Migration Act is also something that can result in visa cancellation and loss of the right to remain in Australia. 

This can be especially painful if the visa applicant and her/his family have “pulled up stakes” from their home country and have relocated to Australia and begun to establish ties here. 

So the outcome in this case – where the AAT affirmed a decision of the Department to cancel a 189 visa – is truly a cautionary tale.  And it is a reminder to visa applicants that one of their paramount and overriding obligations is to comply with the same solemn obligation that applies to witnesses in court proceedings: always tell the truth, the whole truth, and nothing but the truth.  

Failing to be truthful on a visa application can be a “perilous exercise”, as the “truth” has a way of coming out.  And as this case shows, even if the Department does not “catch” inaccuracies when it initially assesses an application, the inaccuracies may ultimately be brought to its attention at a later time.  And if that does happen, a visa holder’s entitlement to be in Australia may be at great peril! 

So what did happen in this case? 

It was the visa holder’s account that “an official of the Department” had made contact with her brother-in-law in the Philippines and that he had invited her to submit a visa application. It was further claimed that this person had been operating a “scam”, had accepted “hundreds of thousands of dollars" in bribes, and had ultimately been sentenced to prison.   

Further, it was also apparently claimed by the visa holder that “all the paperwork” associated with the visa application had been prepared by the person who was operating the “scam”.  That argument was, however, not sufficient to “salvage” the visa holder’s position. 

In what respect was the visa application in this case “incorrect”? Primarily in the assertion that the visa holder had had a skills assessment performed by the Australian Computer Society for the skilled occupation of “ICT Business Analyst”.   As it turned out, apparently after the date of the grant of the visa the Department was notified by the ACS that it did not have any record that it had performed a skills assessment in relation to the visa applicant, and did not even have any record of her name in its database. 

Indeed, the AAT’s decision reports that after arriving in Australia, the visa holder had worked in a fish shop, and that she had not worked in a field related to “computer technology for business analysis”  (the skilled occupation that was the basis for her application for the subclass 189 visa) for “many years”. 

The circumstances of this visa holder were certainly sympathetic, but were not enough to persuade the Tribunal member to overturn the Department’s decision to cancel her visa.  According to the visa holder’s evidence before the AAT, her family had “sold up everything” in the Philippines to finance their travel to Australia.  Working in Australia enabled her to provide financial assistance to several relatives who had remained behind in the Philippines. It was the view of the Tribunal member that “it is strongly in the public interest that people should not benefit by giving false information to secure a migration outcome that would otherwise be unobtainable”. 

What lessons can visa applicants and RMAs learn from the very unfortunate outcome in this case? If someone comes along and promises to get you a visa to Australia, be skeptical: as badly as one might wish to enjoy the benefits of a new life in Australia, if something sounds “too good to be true”, it almost undoubtedly will be! 

Also, “know thyself” and don’t leave matters in the hands of fate by turning the application process over to “someone else”! If one knows that, in reality, one simply does not have the proper academic qualifications and work experience to qualify for skilled independent migration, then just don’t go down that pathway.  It may be possible to find some other, more legitimate way to secure a visa to live and work in Australia!

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