A number of recent decisions by the Department of Home Affairs and the Administrative Appeals Tribunal highlight the importance of consistency when dealing with the Department of Home Affairs.
At any stage of a person’s immigration journey, the integrity of the information provided by an applicant can be brought into question and so it is important that visa and sponsor applicants ensure that complete and accurate information is provide for each application.
Duot (Migration)  AATA 2548 (11 June 2019)
In the case of Duot, the visa applicants had been refused a subclass 117 Child (Orphan Relative) visas on the basis that the Department did not believe they were the “relative” of the Australian sponsor.
This was due to the fact that the Australian sponsor had failed to declare he had a sister in his previous visa applications. Therefore, when the sister’s children later applied for a visa on the basis of their relationship to him the case officer refused the applications on the basis that it was not satisfied the children’s deceased mother was his sister.
At the Tribunal, the decision to refuse the visa applications was upheld. The Tribunal member placed significant weight on the inconsistencies of the information provided by the sponsor, which could not be convincingly explained.
Consequences of giving incorrect or misleading information
The Department will routinely conduct checks to verify that the information provided in a sponsorship or visa application is consistent with information supplied in a previous visa applications. This includes information and declarations made by a sponsor or visa applicant in an application form and/or any evidence provided in support of the application.
Where there is a conflict or inconsistent information provided, then the new application can be refused and the applicant can be banned from making subsequent applications for a specified time.
For example, a visa application which fails to meet Public Interest Criteria 4020, due to the existence of false, misleading or bogus information or documents. The law imposes a ban on the sponsor or applicant from making further applications due to providing false or bogus information. The minimum ban is 3 years.
For companies, false or misleading information can have serious consequences for the organisation’s immigration program. A company’s sponsorship approval can be cancelled if the company provides false or misleading information to the Department or the Administrative Appeals Tribunal, if the company no longer satisfies the criteria for approval sponsor, or fails to inform the Department of notifiable events such as changes in circumstances.
Additional sanctions for business sponsors include:
- ban from sponsoring additional visa holders for a specified time
- refusal of future sponsorship applications
- cancellation of all of existing sponsorship approvals
- infringement notice of up to AUD12,600 for a business and AUD2520 for an individual per occurence
- civil penalty of up to AUD63,000 for a business and AUD12,600 for an individual per occurence
Examples of conflicting information
Examples of information which would adversely impact an applicant include:
- Failing to declare the existence of a character or health issue in a previous application, which is later disclosed in a police clearance or health examination
- Failing to declare adverse information about the sponsor’s business or the applicant’s immigration history.
- Inconsistent information relating to employment, skills or occupation such as changes to the ANZSCO occupation classification of an applicant, new information contained in employment reference letters which was not previously disclosed, omitting certain employment from the applicant’s employment history.
- Failing to declare a relationship or failure to report a change in relationship status of the applicant.
- Providing a false or fake document with any Government application*.
* In news this week, an Afghan migrant’s Australian citizenship was cancelled due to providing a fake Affghani drivers licence when applying for an Australian truck driving permit. The man’s citizenship was cancelled and the Administrative Appeals Tribunal (AAT) subsequently dismissed his appeal because he was not of “good character”. This shows how the Government will take strong action against those who are found to have provided false or fraudulent documents to the Government in an immigration or other application.
How to avoid giving conflicting information
Applicants should keep copies of all lodged applications, including supporting documents, and refer to these when making future applications.
If copies have not been kept, it is possible to obtain copies of previous applications lodged with the Department through a Freedom of Information request. It is prudent to request copies of previously lodged applications before lodging a new application.
In some cases, having a copy of the previously lodged application is an important part of our assessment of eligibility for a subsequent visa.
Can a false or bogus information affect my current immigration status?
Yes, the Minister has the power to cancel a visa under s109 of the Migration Act, in circumstances where an applicant gave incorrect information, or an applicant did not update the Department when information was no longer correct.
Furthermore, the Minister can revoke the citizenship of a person who is found to have given false or misleading information in a visa or citizenship application. This can include occurrences where the person has acquired Australian citizenship and has been convicted of making false claims in their application, or failed to disclose a serious criminal conviction.
What to do if an issue arises
If you have concerns about the information that was previously provided in a visa application, or how to manage a situation of inconsistent information, seek professional advice. An immigration specialist can help to determine whether it is possible to explain the conflicting information or if there is a risk of refusal of the new application.
In some instances, it is possible to provide an explanation or to otherwise manage issues of incorrect or incomplete information previously supplied to the Department.
If you have been refused a visa or your visa has been cancelled, we can provide advice about how to manage your immigration status going forward.
We offer consultations to individuals and businesses needing prompt advice on this type of issue – please book an appointment here: www.themigrationagency.com.au/book