Suppose that when an applicant is filling out a visa application form, they make a mistake that might be totally innocent.

For example,  suppose that when filling out the from, the applicant answers a question concerning her/his English language ability by stating that their IELTS test showed that her/his competency level was “proficient” when in fact the actual test report stated that it was really only at a “vocational” level.

And suppose that the applicant also provides the Department with the test report in support of the application.

Will that mistake trigger the application of PIC 4020 and result in the refusal of the application?

And what if the applicant claims that the error in the application form was the product of an innocent, perhaps typographical, error?

Does the Tribunal have an obligation to determine whether it accepts that explanation?

Is it jurisdictional error if the Tribunal does not do so?

And what happens if the Tribunal makes an error that would not, ultimately, change the outcome of the case.

Does the applicant “win”, and does the case get send back to the Tribunal for reconsideration “in accordance with law”? Or does the applicant nonetheless “go down in flames”?

These very important questions were all examined in a decision that was handed down on 4 May 2016 by Judge Emmett of the Federal Circuit Court of Australia in the case of Singh v Minister for Immigration & Anor (2016) FCCA 774. 

The answer to the first question, does an innocent mistake necessarily mean that PIC 4020 is engaged against the applicant, was provided by the Full Court  in the key case of  Trivedi v Minister for Immigration and Border Protection (2014) FCAFC 42.  In Trivedi, Justice Buchanan made the following observations  about PIC 4020:

“It is apparent from the terms of PIC 4020 that it is addressed (to) the problem of attempts to work a fraud or deception on the assessment of claims for a visa…..I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.

In my view, it should be accepted that an element of fraud or deception is necessary in order to attractthe application of PIC 4020. To take the example of bogus documents, a counterfeit document is notproduced accidentally” (emphasis added). 

So, suppose in a case like Singh, where a person makes a claim that they unintentionally entered an incorrect answer onto an application form, while at the same time giving the Department truthful information (for example, as here, an authentic IELTS test report that accurately states their English language proficiency.

In that circumstance does the Tribunal have an obligation to consider whether it accepts the applicant’s explanation, and to determine whether indeed it was the case that the misstatement on the application form was “innocent, unintentional or accidental, rather than false”?

At this juncture, it is time to call on Sarah Palin’s famous statement: “You betcha!!!” (Who knows, at the rate things are going, Sarah’s political ambitions may come back to life! After all, as recent developments in my home country, the U.S. of A. show, the most obvious path to political success is: reality TV!!!)

Yes, Judge Emmett held in the Singh  case that in cases where the applicant provides a claimed explanation as to why information provided in an application is only “wrong”, but not “purposely untrue”, the Tribunal is bound to determine the issue.

And what if the Tribunal doesn’t determine the issue? Is it necessarily jurisdictional error that can make it necessary for the case to be sent back to the Tribunal?

It may be. But it ain’t necessarily so!!

The Singh case provides the perfect example!

Where there are multiple instances where the Tribunal has made findings that the applicant has given to the Department or the Tribunal either bogus documents or information that is false and misleading in a material particular, and the applicant is able to “impugn”, or call into question, only one of those findings and show that in one case of many there was only an innocent mistake, then the applicant might still go down the gurgler at the hands of PIC 4020.

In the Singh case, in addition to the apparently innocent error involving the mis-statement of the applicant’s actual IELTS test results on the application form, the Tribunal had found that there were some further instances in which the applicant had given the Department false or misleading information.  For example, in the application form, the applicant had stated that he had worked for at least 36 months, but the payslips that he provided to the Department indicated that as a matter of actual fact he had worked for only 26 or 27 months.  And the Tribunal found that there were discrepancies in the information that the applicant had provided concerning his employment history. And the Tribunal found that the applicant had submitted to the Department documents that purported to be copies of his payslips, but were in actual fact “reconstructions” of the payslips that his accountant had prepared for him based on his tax certificates, because the actual payslips had been lost.

In short, not only was there the seemingly “innocent” error on the application form regarding the level of the applicant’s English language ability. There were also several other instances where the applicant had provided the Department with information that was false or misleading, or was contained in a bogus document.

So, did the fact that the Tribunal had failed to conduct an inquiry into the applicant’s claim that the misstatement of his English language level on the application form was an innocent mistake enough to salvage the applicant’s position?

Nope.

As was stated in the High Court case of Minister for Aboriginal Affairs v Peko-Wallsend Ltd: 

“Not every consideration that a decision maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and order that the discretion be re-exercised according to law”.

Where the error on the part of the Tribunal has no material effect on the outcome, then such an error is properly characterized not as a “jurisdictional error” but rather as an “error within jurisdiction.

And so it was in the Singh  case.

Since there were several other independent bases on which the Tribunal could have properly found that PIC 4020 was engaged, and these other grounds for applying the PIC were not challenged by the applicant, the mere fact that there was an error by the Tribunal in failing to evaluate the applicant’s claims that one of the misstatements on his application form was merely the product of an innocent mistake was not enough to salvage his situation.

Even though the applicant in Singh was ultimately unsuccessful before the Tribunal, the case is nonetheless significant for its statement of the principle that when an applicant puts forward a claim that a mis-statement that would otherwise result in the application of PIC 4020 was the product of an innocent or unintentional mistake, the Tribunal has an obligation to assess the merits of that claim.

 

Courtesy of Michael Ephraim Arch from Migration Alliance