Australian Immigration Daily News

Do you think it could cause a problem if a visa applicant does not disclose details of a significant change to her/his medical condition following visa grant?

Or is it the case that once a visa is granted, the applicant has no obligation to provide any further information to the Department, that they are, so to speak, "home free", and can come to Australia without consequence to their visa status?

Well, a recent decision of the Federal Court, in the case of Mitra v Minister for Home Affairs (2019) FCA 1590 (27 September 2019) illustrates that it can be exceptionally risky to "remain silent", and not to disclose a significant change in circumstances to the Department.

What happened in this case was that the applicant claimed that she did not become aware that she was suffering from kidney failure until after her visa had been granted.  She traveled to Australia to take up residence here under a Subclass 475 Skilled - Regional Sponsored visa a few months after the visa was granted. Then, shortly after she arrived, she went to a hospital and stated that she would need regular dialysis. One of the doctors at the hospital also happened to be a Commonwealth Medical Officer; this doctor reported the visa holder to the Department, which then proceeded to cancel her visa.

The applicant sought to challenge the cancellation - which was upheld both by the Tribunal and the Federal Circuit Court - on the basis that she had been unaware of her medical condition until after the visa was granted.

However, this submission was firmly rejected by the Federal Court.

The Court found that under section 104 of the Migration Act, an applicant's duty to report changes in circumstances that may affect the answers given on a visa application form during the entire period from the date that the application is filed until the time that the applicant passes through immigration clearance.

Here, the applicant became aware that she was experiencing kidney failure several months before she traveled to and took up residence in Australia.

The Court found that the applicant's claimed lack of knowledge of her medical condition at the time that she made her application did not excuse her from the obligation to report the changes in her circumstances.

So this case truly illustrates the risks of trying to sweep adverse information "under the rug" and of failing to update the answers on a visa application when circumstances change in a material way - it can be fatal to one's visa rights!

If you'd like to read my previous article on the MA Website about the Federal Circuit Court's decision in this case, you can find it by clicking here; if you'd like to read more details about the Federal Court's decision in the case, please check out my article on Migration Messenger. 

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