Australian Immigration Daily News

Suppose a bogus document is submitted to the Department in support of your client’s visa application?

Does that mean that the application is “dead and arrival” and that you client should start packing up and getting ready to go home?

Also: does section 366A(2), which provides that an “assistant” is not entitled to present arguments to, or address the Tribunal,  except in exceptional circumstances, mean that there is nothing useful that you can do for your client at a hearing?

Well, a case that was decided just this past Wednesday in the Federal Circuit Court, Sapkota & Ors v Minister for Immigration & Anor (2016) FCCA 2837 (9 November 2016) tells us two things:

• PIC 4020 is not always deadly kryptonite!
• There is definitely a lot of benefit to clients in having their RMA or lawyer with them at the hearing.  You can pick up things that happen that can literally save your client’s case (or at least get it remitted back to the Tribunal for “re-determination in accordance with law”.

The factual background in this case was very similar to a number of other cases where PIC 4020 has become an issue:

The client had submitted an application for a “Skilled Residence” visa, the old Subclass 866 visa.

A work reference letter had been provided by her in support of an assessment by the Trades Recognition Authority as to whether she had completed 900 hours or work experience as a hair dresser.

Unfortunately for the client, a similar work reference letter concerning the applicant had been found on a “USB stick” during the search of the home of a “Mr X”. Apparently, this mysterious Mr X had been involved in a scheme with another person, a “Mr K”, through which Mr X would take money from students to provide false work reference letters, and Mr X would then in turn give money to Mr K to falsely verify that the student had gained the work experience.

Apparently, a criminal prosecution against Mr X by the Australian Federal Police in the Victorian County Court, and he pleaded guilty to   the manufacture and sale of fraudulent work references.

When the applicant was told about the prosecution of Mr X at the Tribunal hearing, and told that a work reference letter that was nearly identical to the one that had been submitted to the Department in support of her visa application had been found in Mr X’s possession, the applicant stated that she did not know anything about Mr X.

The Tribunal Member informed the applicant that Mr X had given a statement about his activities to the Australian Federal Police and apparently read that statement to the applicant at the hearing.  The Member also referred at the hearing to an “agreed statement of facts” that was presented in the criminal case against Mr X in the Victorian County Court.

The Member then briefly adjourned the hearing to give the applicant and her advisor to review the materials to which the Member had been referring (presumably the work reference letters that had been submitted to the TRA, and that had been found on Mr X’s USB).

After the adjournment, the applicant’s advisor said to the Member:

“…they (the applicant and her family) would like to have that letter sent to us and we will have a look at it, whatever you have, read out from those statements and will probably make a proper comment”.

What happened next was that the Tribunal sent to the applicant’s representative apparently only the letter that was sent to the TRA, and a print out of the similar letter that was found on Mr X’s USB; it did not provide the applicant with copies of the statement that Mr X had given to the AFP, nor did the Tribunal provide the representative with a copy of the statement of facts that had been referred to in the Victorian County Court proceeding against Mr X.

Can you see where this is leading?

At the Federal Circuit Court, the applicant claimed that the Tribunal had failed to comply with its obligations under section 362A of the Migration Act (which provides that the applicant is entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review).

Judge McGuire of the Federal Circuit Court concluded that the request made by the applicant’s migration agent that the Tribunal provide “whatever you have, you know, read out from those statements” to be effectively a request for the statement given by Mr X to the AFP and the agreed statement of facts that had been referred to in the criminal proceedings against Mr X.,

Judge McGuire found that the Tribunal had failed to produce the materials sought by the applicant’s representative at the hearing, and had made its decision without allowing the applicant to review and comment on those documents.

In so doing, Judge McGuire held, the Tribunal had failed to comply with its procedural fairness obligations under section 362A.

So the moral of this story: procedural fairness “Trumps” (forgive me for using that word!!!!)  everything.  Even where there is a PIC 4020 issue!! If the Tribunal has not accorded your client procedural fairness there is every chance that you can get an adverse decision of the Tribunal quashed.

And be sure you carefully monitor the Tribunal’s compliance, or lack of compliance, with any request that you make on behalf of your client under section 362A.

Just try not to think too much about that other “Trump” who has been in the news this week!