Migration Visas - Evidence and Procedure Kean Legal Barristers and Solicitors

Migration Law Blog Series (MLBS) – 11 – Migration Visas – Evidence and Procedure (part 2) – 5 Mistakes to Avoid!

This is the eleventh in a series of blogs focusing on Migration Law.

If you have a migration issue and are unsure if you should file or what documents to file, do not delay. Please seek legal advice straight away. Do not wait until it is too late.

Nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office if you have any questions on 08 63238613. Unsure what stage your matter is at, or what to do next? A solicitor from Kean Legal Barristers & Solicitors is ready to help.

By Mr. Anthony J Aristei

Here are five common mistakes made in migration visas and how to fix them:

  1. The statutory declaration and/or affidavit has hearsay.

Your statutory declaration or affidavit should only set out facts within your own knowledge.

You should not set out hearsay evidence (i.e. information stated by another person), unless necessary. 

However, there are some exceptions to the hearsay rule. An example was in the case of AKC15 [2017] FCCA 450, hearsay evidence in an affidavit was necessary because the applicant was detained.  As a result, he was unable to swear an affidavit. Therefore, the Federal Court permitted the use of hearsay in the circumstances. 

There are other established statutory and common law exceptions to the rule of hearsay, however, you will need to seek legal advice on whether any exceptions apply to you!

  1. Including information in the statutory declaration or affidavit that you cannot prove

A common mistake in statutory declarations or affidavits is not ‘backing up’ or showing evidence as to what is being said in that statutory declaration or affidavit. The purpose of the statutory declaration or affidavit is to give evidence that you satisfy the conditions of the visa application. 

The declaration or affidavit needs to set out facts or annex documents to fix this issue.  The declaration or affidavit should not contain assertions.

Facts are provable by what you have personally seen or heard (and can rationally verify to be true).  They differ from assertions, which you say are true, but have no rational basis for that conclusion.

For example, the applicant puts the following in their statutory declaration:

I was born in Perth, Western Australia on 1 January 1980.

This statement would likely be rejected as evidence. For that statement to be legally admissible evidence, you would need to annex a copy of your birth certificate in the statutory declaration, obtain a declaration from the relevant authorities or instead file an affidavit from your mother giving evidence of the details of your birth (i.e. that you were born in X Hospital on Y date). 

  1. Spotting a mistake in your application and not doing anything about it

Evidence in support of an application to the Administrative Appeals Tribunal (“AAT”) or Federal Circuit Court (“FCC”) is primarily given by affidavit. Whether you are signing a statutory declaration or an affidavit, they must be sworn before a qualified witness (such as a Justice of the Peace). A professional adviser will often prepare several drafts until a sworn document is ready for swearing.

Once you have sworn one of these documents in support of your application, it is generally TOO LATE to ‘change your mind’ at a later stage! 

The evidence contained in your lodged statutory declaration or affidavit will be relied upon by either the Department of Home Affairs Immigration and Citizenship (“Migration Department”) or the Federal Court (or an Administrative Tribunal). So, make sure you get it right the first time!

The critical time to change, or add the contents of such a document is BEFORE it has been filed.

  1. Being given an opportunity to provide further evidence and not doing anything

If either the Department of Home Affairs Immigration and Citizenship (“Migration Department”) or the Federal Court or the Administrative Tribunal does allow you to provide further evidence, TAKE IT!

By lodging supplementary affidavits or declarations, you might still be able to cure any defect (i.e. ‘fix’) in your visa application.

The case-law in this area has no shortage of matters where the application has been dismissed in circumstances where the applicant was allowed to provide further evidence but failed to do so. (For example, see Sandeep v MIMA [ 2016] FCCA 3339).

If your adviser says that no further evidence is needed, consider obtaining a second opinion!

The outcome of your application is too important to be left to ‘fate’ if you have any doubts.

  1. Not getting it right the first time

Statutory declarations primarily give evidence in support of visa applications.  These written documents must set out legally admissible evidence of all facts necessary to prove each visa condition. 

If all facts and documents are not provided, the application might be rejected by the Department of Home Affairs Immigration and Citizenship (“Migration Department”).  If so, any appeal or review might not be able to overturn that adverse outcome. So why not obtain the professional assistance needed to get it right in the first place? 

If your visa application has been refused by the Department of Home Affairs Immigration and Citizenship (“Migration Department”) a review of that decision will be heard in the Administrative Appeals Tribunal (“AAT”). If the AAT refuses to grant a visa then a review of that decision will be heard in the Federal Circuit Court (‘FCC’). 

As an application reaches the AAT or the FCC, it becomes a lot more difficult to ‘fix’ the application. 

If you have noticed any of these common mistakes or one has already occurred, consider speaking to one of the lawyers from our office for legal advice and representation. We can be contacted on our 24/7 office number on +61 8 6323 8697

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