Immigration Advice & Rights Centre Inc.

In Patel v Minister for Immigration and Citizenship, [2011] FCA 1220 Robertson J was faced with a case where an applicant for a skilled visa whose migration agent erroneously nominated the skilled occupation of “family counsellor” on his application form had sought to change that nominated skilled occupation during the course of the Migration Review Tribunal proceedings. The Tribunal found that an error had been made in nominating the occupation of “family counsellor” in circumstances where all of Mr Patel’s impressive qualifications were in the sciences and computer technology.

Two arguments were put forward on behalf of Mr Patel. One was that the scheme of the Regulations, read with section 54 and 55 of the Migration Act, permitted a change in nominated skilled occupation. His Honour rejected that submission, finding that the structure of the Regulation in question did not permit a change in nominated skilled occupation. The other argument was that Mr Patel had merely sought to correct an error, and was required to do so under section 105 of the Migration Act. That section states;

105  Particulars of incorrect answers to be given

                   (1)     If a non‑citizen becomes aware that:

                           (a)         an answer given or provided in his or her application form; or

                           (b)         an answer given in his or her passenger card; or

                           (c)         information given by him or her under section 104 about the form or card; or

                           (d)         a response given by him or her under section 107;

was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

                   (2)     Subsection (1) applies despite the grant of any visa.


The argument was that an “error” in nominating an occupation was a species of incorrect answer. The Minister’s response, and the argument that prevailed, was that the purpose of section 105 was to oblige a visa applicant, or visa holder to correct information given to the Department that was incorrect at the time it was given. This answer was not “incorrect” at that time.
 
Quite apart from the consequence of this case to the unfortunate Mr Patel whose considerable abilities may be lost to this country because of the inflexibility of migration laws and the actions of his agent, the case draws attention to the regime in the Act that seeks to ensure that visa applicants and holders keep the Department fully informed of accurate information.

Section 101 states that a non‑citizen must fill in or complete his or her application form in such a way that all questions on it are answered; and no incorrect answers are given or provided. An incorrect answer includes information given to a Departmental officer or a review Tribunal in any way whatsoever (s 99), and is incorrect even if the applicant did not know that it was incorrect at the time the information was given.

The Act (s. 103) also provides that a “bogus document” is not to be provided to the Department. A bogus document is one that has a person’s name on it but was not actually issued to him or her, has been faked or altered, or was obtained because of a false or misleading statement, whether or not made knowingly.

From the above it could well be concluded that a person has a duty to reveal information of which they have no knowledge, but the Migration Act is not quite that silly. That is because section 104 and 105 deal with the situation of what must be done if a person’s circumstances change or he or she becomes aware of an incorrect answer.

Section 104 imposes a duty for persons to inform the Department in writing if their circumstances change so that an answer that they have given to a question on an application form or previously given to an officer of the Department is incorrect in the new circumstances. However that only applies before a visa is granted if the applicant is in Australia at the time the visa is granted. It applies to a person whose visa is granted abroad before the person is cleared through Immigration control at a port or airport.

This all leads up to section 105, which imposes an overriding duty of a visa applicant, or a visa holder, to inform the Department in writing of any inaccuracy in any information given to an officer of the Department as soon as reasonably practical.  This applies to information that was incorrect at the time it was provided, and the duty is to provide details of the incorrect information given and the correct information.

As Mr Patel’s case demonstrates, s. 105 has a specific and limited purpose. It will be a brave or desperate applicant who in the future seeks to construe that purpose widely for their benefit.

 
By Leonard Karp, Barrister 

(Counsel for the Appellant in Patel v MIAC [2011] FCA 1220)