Federal Court Decision Teaches: Get Your Case Together Early!

This time-worn saying certainly rings true in relation to migration law: it is so so important to sort out problems with the evidence at an early stage!

A recent case that came before the Federal Court, Faruque v Minister for Immigration and Border Protection (2015) FCA (9 November 2015) illustrates just how perilous it can be “not to get to the bottom of an issue” at the earliest possible time and to resolve any questions that the Department may ask concerning the accuracy or authenticity of documents that are submitted in support of a visa application.

There are two clear lessons to be drawn from this case:

1. Where it is necessary to submit documents from a third party to satisfy a criterion for the grant of a visa, every effort should be made to verify the authenticity and accuracy of the documents (such as bank statements) before they are submitted to the Department. It would be well to confirm with an applicant whether they are satisfied that a bank statement or other record does in fact accurately and truly reflect their financial holdings with the institution. This type of “due diligence” may help to prevent an applicant from becoming ensnared in PIC 4020 issues in the first place.

2. If the Department raises an issue concerning the accuracy or authenticity of documents or information, and an explanation is available that will resolve the Department’s questions, then make sure that the clarifying material is submitted to the Department promptly. Waiting until after the Department has refused an application, or until after the Tribunal has held a hearing and issued a decision may very well be “too late in the process”. As happened in Faruque, the Federal courts are very unlikely to overturn the Tribunal in that situation.

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