Australian Immigration Daily News

What is the story if your client submits a bogus IELTS test report in support of an application for a skilled visa? 

Will the client be “up the proverbial creek” without a paddle? (The Migration Alliance blog is a family publication, so I won’t provide the name of the “creek”, but we all know what it is!) 

Well, we are all aware that running afoul of Public Interest Criterion 4020 is not necessarily fatal! 

There is an “emergency escape hatch” where the application of PIC 4020 can be “waived”, and the refusal of the visa application avoided, under clause 4020(4)(i) and (ii) of the PIC. So if evidence can be brought forward that there are either “compelling circumstances that affect the interests of Australia” or “compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen” that justify the grant of the visa in question, then the mere fact that a bogus document or information that is false or misleading in a material particular has been provided to the Department will not doom the visa application. 

In other words, the waiver provisions of PIC 4020(4) are a “paddle” available to help those who find that they are up the wrong creek! 

But suppose you find yourself in a situation where the Tribunal member has apparently given assurances that she/he will take certain matters into account that are relevant to the question of whether compelling and compassionate circumstances, and then does not do so? 

Is there anything you can do, is there a remedy, or is your client “stuck”? 

Well, a decision that was handed down by the Federal Circuit Court at the beginning of this month, Fernando v Minister for Immigration & Anor (2016) FCCA 409 (1 March 2016) tells us that there is a way that such an unfortunate situation can be corrected – through an application for judicial review. 

In fact, this case provides a classic illustration of a particular kind of “jurisdictional error”.   Where the Tribunal fails to take a “relevant matter” into consideration in reaching a decision, then that decision can be successfully challenged in Federal court. 

Ok then, what did actually happen in the Fernando case?  The applicant sought a Skilled (Residence) visa (subclass 885) all the way back in early April 2011. The Department found that a “bogus” IELTS test report had been provided in support of the application, and consequently refused it. 

Before the MRT as it then was known, the applicant provided two separate letters from his employer that contained evidence relevant to the question of whether there were compelling circumstances that affected the interests of an Australian citizen (the employer).  The applicant requested that the Tribunal hear evidence from the employer. 

When the hearing was convened before the Tribunal, the presiding member decided not to hear evidence from the employer. The Tribunal member indicated that he was prepared to accept that the applicant was a “valued employee”.  The Tribunal member also stated that he would consider evidence that had been included in the employer’s letters to the Tribunal which stated that the employer had suffered a heart attack and had subsequently had surgery into account in determining whether to waive the application of PIC 4020. 

However, in the event, the Tribunal’s decision did not take into account all of the matters that had been put forward in the employer’s letters.  In particular, the Federal Circuit Court concluded from its review of the Tribunal’s reasons for its decision, that the Tribunal had not considered the fact that the employer had suffered a heart attack and had undergone surgery.  Nor had the Tribunal considered other matters significant to the question of whether there were compelling and compassionate circumstances, such as these facts: that the applicant had been providing assistance to the employer due to the employer’s ill health; that the employer had expanded his business, and had established a second business, on the basis of the applicant’s skills; and that the employer’s business and livelihood would be in jeopardy if the applicant was unable to continue to work for him. 

The outcome was that the Federal Circuit Court found it appropriate to issue a writ of certiorari quashing the decision of the Tribunal, sent the case back to the Tribunal for redetermination, and awarded the applicant his professional costs. 

What are the lessons here? The question of whether the Tribunal has committed jurisdictional error by failing to consider a relevant matter is something that will necessarily have to be evaluated on a case-by-case basis: exactly what evidence was put before the Tribunal, was the evidence in question truly relevant to the determination of the issues, and did the Tribunal, in its written reasons, make specific reference to and give genuine and realistic consideration to that evidence. 

If, as in the Fernando case, the process has somehow miscarried, and the Tribunal has failed to consider a relevant matter, then you’ve got a classic case of jurisdictional error, and excellent prospects for successfully challenging the Tribunal’s decision!

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837