Australian Immigration Daily News

We have seen in many of the articles on this blog that Public Interest Criterion 4020 poses a gigantic risk to visa applications.

In many ways, PIC 4020 is the migration law equivalent of being bitten by a funnel web spider or a brown snake: in other words, typically pretty darn fatal unless you can quickly find an antidote!

Similarly, we have also seen that section 501 of the Migration Act can, in its own way, be absolutely toxic to the legal entitlement of the holder of a visa to remain in Australia.  To put it bluntly, the cases suggest that if a person commits a serious criminal offence that results in a sentence of imprisonment of 12 months or more, it’s a pretty sure bet that they’re going to get their visa cancelled.  And it’s going to be an awfully tough fight to challenge the visa cancellation in court, because the grounds of successful challenge are very limited.

On this “happy topic” (not!) , a decision that was handed down from the Federal Circuit Court last Friday, 25 November 2016, has provided a reminder about another “ticking time bomb” that visa applicants and those who are advising them as Registered Migration Agents need to be aware of, and careful about.   The name of this case was Mitra & Ors v Minister for Immigration & Anor (2016) FCCA 3043.

The time bomb in the Mitra case was section 104 of the Migration Act. 

To refresh, section 104(1) of the Act provides that:

“If circumstances change so that an answer to a question on a non-citizen’s application form …..is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them”.

The obligation to inform the Department about the changed circumstances applies, in circumstances where the applicant is outside Australia at the time that the visa is granted, to changes in circumstances that have occurred after the application was made and before the visa holder has been immigration cleared.

The consequences of failing to comply with section 104 can be “deadly”: a person who has not complied with section 104 can suffer visa cancellation under section 109.  An outcome as bad as being squashed by an elephant, or, in Australian terms, being taken for a swim by a crocodile or a white pointer! Not good!

So what happened in the Mitra case? The applicant, a national of Bangladesh, had applied for a “Skilled – Regional Sponsored” visa,  Subclass 475.  She attended a medical examination on 30 July 2013 and was able to satisfy the relevant health requirements. So on 11 September 2013, she was granted the visa.  In October 2013, she suddenly came down with a high fever and other symptoms, which led to a diagnosis of kidney disease that required dialysis.  She then entered Australia  in March 2014 with her husband and their child.

Shortly thereafter, she attended a hospital in Albury, NSW and indicated that she expected to undergo regular dialysis treatments. The hospital administration informed the Department about Ms Mitra’s situation, and of course this led to a chain of events resulting in the cancellation of her visa by the Department.

The cancellation was made on the basis that the applicant had failed to comply with section 104 by not informing the Department about the changes in her health condition that had occurred after she had her medical exam.

Before the Tribunal, the applicant attempted to explain her failure to inform the Department about the changes to her medical condition because “she was not aware of her obligation to do so”. 

The Tribunal rejected this explanation.

Instead it found that the applicant had no told the Department about her change in circumstances “because it was likely that she and her family would not be permitted to enter Australia”.   The Federal Circuit Court characterized this finding as being one that “the applicant willfully decided not to provide information she ought to have provided to the Department”.

So it should come as no surprise whatsoever that the applicant’s attempts to overcome the cancellation in the Federal Circuit Court proverbially “crashed and burned”.

There is a real lesson in this case for visa applicants and their advisors:  Just because a visa has been granted, it does not mean that the applicant is “home free”, and that the visa holder’s entitlement to remain in Australia is from the point of visa grant and forever after sacrosanct and immune from challenge. 

If the applicant’s circumstances have changed in a way that brings their eligibility for the visa into question, this is not something that can be “swept under the rug”.  As the Mitra case graphically illustrates, a visa holder’s failure to notify the Department about changes  that have occurred to their circumstances as required by section 104 can literally spell the end of the visa.

A ticking time bomb that can go off with disastrous consequences! Kaboom!

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