Australian Immigration Daily News

Would anyone (especially anyone like me who has suffered a computer “melt-down”) argue with the proposition that:  “The Internet is wonderful until it is not!”?

Likewise, we could say that the ability to apply for a visa through the Department’s on-line systems is a fantastic convenience both for applicants and the Department.

Until it is not!

And a case that was decided last week in the Federal Court, Salama v Minister for Immigration and Border Protection  (2017) FCA 2 (9 January 2017) provides graphic illustration of the “until it is not” downside of Internet visa applications.

This was the story:

The case involved an application for review of a decision by the Department to cancel a Resident Return visa.  The basis of the cancellation was the Department’s claim that the visa holder had failed to comply with section 101 of the Migration Act by giving an incorrect answer on the electronic application form concerning his relationship status.

The background was that the visa holder had originally arrived in Australia from Egypt as the holder of a Prospective Marriage visa. After marrying his sponsor and being granted a Subclass 820 provisional partner visa, he returned to Egypt. While still married to his Australian sponsor, he then married another woman in Egypt. Then, in 2007, a divorce order was made in the Federal Magistrates Court which ended the visa holder’s marriage to his Australian sponsor.

The visa holder remained in Egypt from 2006 to 2011. But in 2012, he decided that he wanted to return to Australia. So he lodged an electronic application for the Subclass 155 Resident Return visa.

There was a question on the on-line form which required the visa holder to provide his “relationship status”.  And a “pop-up” explanation on the electronic form indicated that an applicant should select the term that “best described” her or his status.

Here’s the difficulty, or at least one of them: The visa holder’s marriage to his second wife, entered into before he was divorced from his Australian wife/sponsor,  was valid in Egypt but invalid in Australia.  So what was the correct characterization of his relationship status? Divorced? Married? De facto with the second wife? All of the above? Neither of the above?  Yes/no yes/no? Who knows?

Well, the electronic form only allowed one answer. And the applicant answered “Divorced”.

What caused even more problems was that after being granted the Resident Return visa, the visa holder sponsored his second wife for a partner visa.  And on that application, it was stated that the visa holder had been married to his second wife since 2004, in other words, prior to the time that he applied for the Resident Return visa. Again, on the application for the Resident return visa, the visa holder had said that he was divorced.

To complicate matters even further, the pop-up on the application form for the RRV indicated that an applicant should indicate that she/he was “married” if the marriage was “legally recognized and documented”.

It is important to note that the electronic application form did not provide a mechanism for an applicant to explain the “nuances” of his/her situation – e.g. that in this case the applicant’s second marriage was not legally recognized in Australia but was valid in Egypt.

This situation did not sit well with the Department. It proceeded to cancel the visa holder’s Resident Return visa, on the basis that his answer that he was “divorced” was not correct. 

Review of the cancellation decision was then sought before the AAT.  And this is where things took another “wrong turn”.

While the Tribunal made a finding that the visa holder “did not declare his correct relationship status”,  the Federal Court (Perry  J) determined that this finding was not equivalent to a finding that the answer provided on the application form was “incorrect”.  Consequently, the Federal Court concluded that the visa cancellation power under section 109 of the Migration Act  had never been “engaged”, and that therefore the Tribunal had fallen into jurisdictional error when it affirmed the Department’s decision to cancel the Resident Return visa.

Is your head spinning yet? Or did it start spinning a while ago?

Here are some lessons which I suggest can be drawn from the case:

1. The Department evidently cross-references the answers provided by applicants between different visa applications. So it is really (really!) important that the answers provided on one application form be completely truthful and consistent with other applications made by the same applicant.

2. The electronic application forms available on ImmiAccount do not accommodate subtlety, complexity or nuance. They are “binary” in asking for “yes/no” type answers. Therefore, in situations where there is a lack of clarity, or where a simple “yes/no” type answer might not adequately characterize the facts, it is a great idea to communicate directly and immediately with the Department  to provide detailed explanations   and to provide the subtlety, nuance and complexity!

3. The case makes you wonder if the Department’s compliance section has too much time on its hands and is looking for things to do.  Why on earth would they proceed to cancel a resident Return visa on the basis that an applicant has mischaracterised her/his relationship status? What possible difference could it make if an applicant for a RRV is married, divorced, de facto, or Martian? Does anything turn on that at all?  Isn’t it the case that if the Department is worried about the authenticity of a partner application made by or sponsored  by the holder of an RRV, it can deal with those concerns in the context of assessing the partner visa  application itself?  Since every applicant for a RRV has to satisfy primary criteria in their own right, what difference does it make what their marital status is.

And suppose someone did incorrectly state their relationship status on an RRV application. What integrity issues would that pose, other than zero.

More summertime fun!

Thoughts, anyone?