Misleading information by visa applicants is like COVID
Misleading information supplied by applicants in the visa process has become the COVID of migration law. Often it is not so much the ‘bad’ information but it is the coverup which causes the problem. The use of Public Interest Criterion 4020 is nowadays, used by Immigration on a much more prevalent basis to refuse visas. Conversely visas including permanent residence visas can be cancelled over the discovery, post grant, of misleading information supplied in the visa application process. Once misleading information gets into a visa file it can be as difficult as COVID to eradicate.
The recent Full Federal Court decision of Contreras v Minister for Immigration [2021] FCAFC 154, shows that a careless or opportunist approach to answering questions on a visa application form can later lead to visa cancellation. The facts of that case were that the former partner visa holder had misled Immigration about the answer to this question in the visa application form:
Have you, or any other person included in this application, ever:
Been charged with any offence that is currently awaiting legal action? No Yes
Prior to arriving in Australia, the visa applicant, a Mexican national, was in a vehicle crossing the border into Texas, USA, when a significant quantity of marihuana was found in the boot. She was apprehended by the Texas police but got ill and was taken to hospital. She said she was never actually charged with any offence nor was she actually arrested.
Later, her USA lawyer provided material to the tribunal which revealed that some type of criminal court proceedings had been commenced (prior to the Australian visa application) although it was unclear as to whether there was an actual charge in place. The tribunal concluded:
“25. When the Tribunal put to the applicant at hearing that it was unlikely that just because she went to hospital she was not issued with a summons or some documentation referring to charges, the applicant replied that when she went to hospital the officer just gave her his business card and left and that was that. The Tribunal finds this account somewhat implausible, particularly as the Tribunal gave the applicant an opportunity to provide first-hand information from the authorities that she had not been arrested and had not been required to attend court and had never breached her bail conditions as she claims. These were assertions made by the applicant and her attorney without credible supporting documentation.”
Essentially the tribunal concluded, that she was aware, that the whole issue of the drug offences occurring at the border between Texas and Mexico were NOT resolved.
In Contreras, the Full Court concluded that one should not take an overly technical view in assessing whether an answer to a question is correct or not:
“35. Central to any decision as to whether an answer is ‘incorrect’ is an understanding of the question being asked and the context in which the question is being asked. We accept that determining the meaning of the question should be undertaken with a practical bent, without any need for legal research or advice. That is, “the ordinary meaning of the words or phrases in a visa application form should not be lightly departed from”: see eg Le v Minister for Immigration and Border Protection (2019) 272 FCR 1 (‘Le v Minister’) at [32] (Nicholas, Katzmann and Bromwich JJ). Further, the application form should be read having regard to the reasons for seeking the information: see eg Le v Minister at [31]. Those reasons include whether a visa should be refused under s 501 of the Act, which includes whether a person is not of good character: see s 501(6)(c). Then it must be recalled that the questions apply to persons coming in from all parts of the world, who are subject to different types of criminal procedures and processes. For this reason, the questions must necessarily be general and capable of eliciting the information requested in the context of a wide variety of jurisdictions…..
38-…Then the phrase “currently awaiting legal action” is a wide phrase to be adapted to the circumstances of various applicants from many parts of the world. In our view, “currently awaiting legal action” in relation to an offence would include any legal process relevant to and in connection with the offence that remains extant at the time the question is answered.”
The Full Federal Court upheld the decision of the tribunal to affirm the visa cancellation.
The circumstances were particularly pungent for this former visa holder. The court recognised that she “will likely be removed from Australia consequential on the cancellation of her partner visa.” She had separated from her husband and although her 3 year old son lived with her, the Family Court had made orders preventing her son leaving Australia.
Difficult to speculate on what may have happened if she had revealed the Texas encounter with the police. But whatever may have happened her situation now is hardly preferable, she will eventually be removed from Australia, probably without her son who is an Australian citizen.
Other cases the writer has seen are those where the visa applicant was negotiating an outcome with the police and therefore answered ‘no’ to charges ‘awaiting legal action’. But when natural justice letter was issued, the advice given was that the visa application should be withdrawn and he should re-apply, this time in the re-submitted visa application, revealing that there are issues “currently awaiting legal action”
The reason is, that PIC 4020, only applies if a visa has actually been refused on the basis of 4020, the operative part of which states:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
Studying the above extract carefully, one sees that if one withdraws a visa application where a breach of 4020 is threatened then 4020(2) will NOT come into play if a new visa application is submitted without the false or misleading material.
It is sometimes difficult for clients to envisage withdrawing a visa application and forgoing any Visa Application Charge that has been paid. However if the applicant holds a substantive visa, better to forgo the fee paid, withdraw the visa application and therefore inoculate oneself against 4020!