Australian Immigration Daily News

Will Public Interest Criterion 4020 always be toxic to your client’s visa application? 

If your client has submitted a bogus document to the Department in support of an application, will that document always be a “ticking time bomb” that is bound inevitably to “blow up” at some time in the future and be fatal to the application? 

What if the Department is notified by the administrator of the IELTS test that a test result has been cancelled because the test has allegedly been taken by an imposter? And what if the photograph of the person who took the IELTS test as shown on the IELTS Test Report Form does not “match” photographs of the applicant that are held by the Department? 

Does that mean that if the application is refused, the applicant has “zero chance” of succeeding at the Administrative Appeals Tribunal? 

If a client comes to you with this situation, do you fling yourself on the ground in despair and conclude that “there is nothing that can be done”? 

Is there a “legal antidote”, a way to salvage your client’s situation, an answer to the Kryptonite of PIC 4020? 

A case that was decided by Justice Manoursaridis of the Federal Circuit Court on 27 May 2016, Puri v Minister for Immigration & Anor  (2016) FCCA 1281 tells us that in certain circumstances, there may very well be at least a temporary answer to PIC 4020. 

And you may be wondering, just what could that answer possibly be? 

As the case shows us, it is section 359A of the Act. 

That’s right! 

Procedural fairness literally triumphs over everything! Including the toxic, poisonous effects of PIC 4020! 

Let’s see how that happened in the Puri case! 

Well, at first blush the situation looked just about as dire as the scenario described at the beginning of the article. 

The facts were that the Department was notified by the administrator of the IELTS test that a person who was not the applicant had taken the test, and the test administrator had therefore cancelled his test result 

And, after receiving this notification, Departmental officers had used the IELTS Verification Website to access the applicant’s IELTS test report from, viewed  a photo attached to the test report, and then compared that photo with photos of the applicant that were stored on the Department’s “Integrated Client Services Environment System”.  

Apparently big big trouble because the photos did not appear to show the same person! 

So the Department then proceeded to reject the application on the basis that PIC 4020 had not been satisfied. An application for merits review to the AAT then followed.  But the AAT affirmed the refusal. 

So, how did section 359A come to the client’s salvation (or at least, enable him to get the AAT’s decision quashed?). 

As we know, section 359A requires the Tribunal to: 

(a) Give the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;

(b) Ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)  invite the applicant to comment on or respond to it.

So, how did the Tribunal go astray in this case?

It failed to do the following:

Identify the report which it had received from the administrator of the IELTS test that stated that the applicant’s test result had been cancelled on the basis that the test had been taken by an imposter;

Identify the photograph of the person shown on the IELTS Verification Website as being the person who actually took the IELTS test;

Give clear particulars of the photographs of the applicant that were held on the Department’s Integrated Client Services Environment System that had been compared with the photographs of the test-taker on the IELTS Verification Website.

So there is a really clear and important lesson to be taken from this case!

If your client asks you: “Why should I pay you to attend the Tribunal hearing with me? What value can you add to the process if you have, at best, limited rights to participate as my representative at the hearing?” you will be able to give your client a very good answer:

“Among other things, if I am present at the hearing, I will be able to observe whether the Tribunal has complied with the law and treated you fairly by ensuring that you are shown the details of any information the Tribunal may rely on to make its decision, and that you will have an opportunity to comment on, and if necessary, contradict that information”.

So,  the case shows us that section 359A may be something you can rely on to defuse the ticking time bomb of PIC 4020!

And you’ve also got a great “marketing tool” to use with your clients about how oyu can add value by attending the AAT hearing.

No, you won’t simply be a “bump on the log” passively monitoring the hearing and taking notes!

Far better! You will be actively observing the process, and watching closely to make sure that your client's rights to procedural fairness are protected.  And if you see that they are not, then you will have the evidence in hand that will enable you to get the case sent back to the AAT for a further hearing.

When you’re dealing with PIC 4020 issues, it doesn’t get a whole lot better than that!

 Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.