Australian Immigration Daily News

Do you want to read a story that illustrates why it is a poor idea for an applicant to turn the whole process of completing a visa application over to a “consultant”, without checking the contents of the application for accuracy?

Or why it really is “bets practice” for a Registered Migration Agent to have the applicant review all the information that is provided on an Internet visa application before clicking on the “submit” button?

Then look no farther than the recent decision of the Federal Circuit Court in the case of Ashiq v Minister for Immigration & Anor (2017) FCCA 544 (7 March 2018).

This was the background of the case: The applicant was a citizen of Pakistan. In February 2012, he applied for a student visa.  The application form contained the usual question asking whether the applicant had ever served in a military force, or had undergone military training.  An education consultant in Pakistan filled out the application form for the applicant, and the applicant did not read the form before signing it.

The education consultant had answered the question about whether the applicant had ever had military training by checking the box “No”. 

However, when it came time for the applicant to apply for a second student visa, in March 2015, he stated on the application form that he had in fact undergone military training as am aviation cadet at the Pakistan Air Force Academy.

He then received a request for more information about his military service from the Department, and responded to this request by informing the Department that his service at the Pakistan Air Force Academy had been terminated on “disciplinary grounds”. The evidence was that the termination had resulted from a series of minor infractions involving lateness and non-attendance at classes.

You can guess what happened next.

The Department refused the second student visa application on the grounds that the applicant did not satisfy Public interest Criterion 4020, in that the information indicating that the applicant had not had any military service or training was found to be false or misleading.

What had caused the incorrect information to be included in the original application for the student visa was that the education consultant who had filled out the application form concluded that the applicant had not had any military service or training because he had not had a military career.  And so the consultant had answered the question about the applicant’s military training in the negative. 

The Federal Circuit Court thus concluded that the Tribunal’s conclusion that the incorrect answer provided by the education consultant was not the result of inadvertence, accident or negligence was a conclusion that was “open” to the Tribunal.

And thus, because the consultant had been aware of the applicant’s military training but had incorrectly interpreted the question on the application form and had indicated on the form that the applicant had not had any military training when in fact he had undergone such training for a period of time, the Court concluded that the incorrect answer on the application form had the quality of being “purposefully untrue”.

And as a consequence, the Court found that there had been no error by the Tribunal in affirming the refusal of the visa application on the basis of Public interest Criterion 4020.

So, the moral of the story here is that it will not “save” an applicant from the effects of PIC 4020 if the applicant was unaware that a false answer has been provided on an application form by someone who prepared the form for the applicant, or that the applicant is “shocked” or “surprised” that such an answer has been given.

The further moral of the story is that applicants should not simply “blindly” sign an application form without reading the answers given in the form, and checking them for accuracy.

Likewise, it is undoubtedly the safer course if there is ambiguity or uncertainty about a question on an application form to “err” on the side of full and complete disclosure.

Here, what turned out to be fatal to the applicant was not that he had had some training at the Pakistan Air Force Academy, but rather, that this fact had not been properly disclosed on the application form, resulting in the application becoming entangled in the pitfall of PIC 4020, and thus refused.

Or, in the words of the old Russian proverb that was fondly adopted by former US President Ronald Reagan, “trust but verify”!!!