Do you agree that Public Interest Criterion 4020, as interpreted by the Full Court in the famous Trivedi case, can sometimes operate to have (brutally) harsh results?
If you have any doubt, consider the case of Ashiq v Minister for Immigration& Anor (2018) FCCA 544 (7 March 2018), most recently updated on Austlii 31 July 2018.
The circumstances in this case were that the applicant, a citizen of Pakistan, originally applied for a student visa in February 2012.
There was a question on this application form that asked “Have you, or any member of your family unit included in this application, ever…served in a military force or state sponsored/private militia, undergone any military/paramilitary training, or been trained in weapons/explosive use?”
This application form was prepared on behalf of the applicant by an education agent in Pakistan. The applicant did not read the responses that were provided on the form before he signed it. The education consultant answered the question about military training/service by ticking a box “No”, on the basis that the applicant had “not had any military career”.
However, when the applicant applied for a second student visa, he stated on the application form that he had undergone military training or service in Pakistan as an aviation cadet at the Pakistan Air Force Academy.
After this second student visa application was lodged, the Department sent a letter to him seeking more information. In reply to this letter the applicant provided information stating that his service at the Pakistan Air force Academy had been terminated on “disciplinary grounds”.
After the second student visa was refused on the basis of PIC 4020, evidence was given at the Tribunal that the applicant had been dismissed from the Pakistan Air Force Academy not because he had been charged or found guilty of any offence, but rather due to a series of “minor infractions of discipline” involving issues such as lateness and non—attendance at classes.
In other words, there was apparently no substantive “character” reason that would have resulted in the refusal of the second student visa application arising from the applicant’s dismissal from the Pakistan Air Force Academy – and one has to wonder if the applicant’s history of attendance at that academy had been disclosed on the original student visa application, and the reasons for his dismissal explained in the fashion that was ultimately done before the Tribunal, whether either the applicant’s first or second student visa applications would have been refused.
In the event though, the failure to satisfy PIC 4020 proved to be fatal to the second student visa application. It did not matter that the applicant had not had any involvement in the preparation of the visa application that did not correctly answer the question concerning his previous military training, or that, due to his young age and trust in his parents and the education agent they had retained, he had simply signed the application form without reading it, and that he was not himself aware that the information that had been given in the first application was false and misleading.
Under the Full Court’s decision in Trivedi, the guillotine blade of PIC 4020 fell on the application even though the applicant did not know that incorrect information was included in the application, and that he had no direct involvement in providing the incorrect information.
So the moral of this case is that applicants put themselves at risk of having PIC 4020 come back to haunt them if they simply rely on an agent to prepare an application and then sign and submit it to the Department without reading it and checking it for accuracy.
PIC 4020 can be absolutely lethal, so it pays to make every effort to avoid being ensnared by it!