Saturday the 28th of July 2014
Volume 315

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Dear subscribers, 


Today we begin our two part series on how case officers errors can cost applicants dearly. Many of their mistakes are picked up in a Migration Review Tribunal (MRT) process but many others like in the story below never come to light because applicants withdraw their files feeling there is no hope.


These mistakes by case officers not only lead to tremendous stress to the applicants they often result in applicant suffering a significant financial loss. What can you do in cases like this? Are they accountable?  


If any of our readers have a similar experience with the DIBP please let us know. Tomorrow we will publish Part 2.


Case Officers mistakes can cost you dearly: Sumiti and Himanshu's story

Sumiti and Himanshu during one of their many joint trips.

Sumiti and Himanshu's story will resonate with a lot of international students. Two students from India come to Australia to study and pursue a career in their chosen fields, over the course of their academic pursuits meet, fall in love and decide to make Australia their home. Of course before making Australia home they had to go through the permanent residency application process that proved to be more trying than was necessary.

In a lot of cases seeing each other through the original struggle in a new country can make couples more resilient and extremely committed. Himanshu says "You know in our culture we don't take relationships lightly, it is always meant as something that we want long term. Even before we got married Sumiti and I knew our relationship was going to be solemnized into a lifelong commitment in front of our family and friends"

Both of them had the qualifications to apply for Permanent Residency independently, however since they were living together as a de-facto couple and Sumiti had already got the required IELTS score they decided to lodge their residency application, they applied together, with Sumiti as the main applicant and Himanshu as her dependent.

They had done their research and found out that if they were living together in a committed relationship as a de-facto couple and had a Relationship Certificate they did not need to prove the usual 12 months of relationship evidence. This certificate was the type listed by the DIBP as acceptable in Queensland.

Shortly after the application was lodged Sumiti received a request for one year's worth of evidence regarding their relationship.

"At first, we were very happy about having a case officer working on our file."

Unfortunately for Himanshu, the case officer insisted they needed to demonstrate 12 months worth of relationship evidence despite the presentation of the Relationship Cerificate.

"Second time, when case officer came back with the same query, we were quite puzzled as why he is repeating the same query and we researched again to find the right answer.
We felt really sad, upset and depressed about the system as we could not find any way to go back to that case officer and show him the law statement because he kept asking for the proof of 12 months of defacto relationship."

Unfortunately Himanshu and Sumiti were intimidated by the power a case-officer wielded, "We were scared to annoy him as well because for us , he was the decision maker, so we started collecting all bits and pieces to support our claim that our relationship is genuine and we are going to marry as well. This time, we submitted various forms (form 888)
witnessed by our Australian friends & relatives, bills year old, Our photographs together on numerous occasion, statements signed by parents, my partner & myself and much more.
As soon as we uploaded all the documents( which took us days to collect), case officer came back within 20-25 minutes repeating same query. He said we needed as a de-facto couple to show 12 months of living together."

Sumiti and Himanshu felt tremendous pressure but had faith in the system, they felt they would definitely get a fair go especially as they did satisfy the criteria they needed to. "We were only stressed and under little pressure up to the second time but we still had some hope from the system as we knew that if you are doing right, nothing can go wrong here (Australia). We thought, we were absolutely wrong when case officer came back third time repeating himself and now we were panicked, stressed and seemed like lost."

Unfortunately it seems like their belief in the system was a mistake. The case officers insistence of the couple needed to be living together for 12 months told them that Himanshu was going to rejected as the dependent. Not wanting to jeopardize Sumiti's chances for residency, Himanshu withdrew himself from her application and he also did not want a refusal on his records for he thought that would be a black mark against him.

In the following months he read Volume 297 of  IMMIGRATIONews that detailed the meaning of Relationship Certificates and de-facto partners according to the Migration Regulations 1994. To their horror Himanshu and Sumiti discovered they were right all along. 

The existence of the Relationship Certificate meant the case officer had no right to insist the couples the de-facto evidence must be present for 12 months immediately before they lodged their application.

They say "This didn't just shaken our belief but this made us so skeptic about everything, that we started thinking there is no point if you are genuine or not, if they are stuck on something you cant really make them agree with what you have got. You don't get chance to speak to case officer so that you can clarify. This is like monopoly of rights, they have got right to decide about our future, our life and there is no other way to go back to them for justification except MRT which is possible only in case of refusal or cancellation of visas ."

Himanshu felt forced to withdraw as a dependent from his partners application rather than have a rejection record with the DIBP. He withdrew his application under protest and since he was still on his 485 visa prepared to lodge a Spouse 820 application as soon as his partner received her PR.

Before his 485 visa expired Himanshu made a complaint to the Department of Immigration once he became aware that his case-officer had ignored the Relationship Certificate. David Veany, the DIBP's Manager of South East Asia/UK (B) of GSM Adelaide wrote back confirming that they did in fact not need to prove 12 months of relationship as the case officer insisted but said "the applicant withdrew his application on his own accord"

In summary Mr. Veaney said the couple could lodge an application for compensation but did not bother to explain why the case officer ignored the Relationship Certificate.

Himanshu understandably was upset with the DIBP reply. He says "The withdrawal was a consequence of the case-officers insistence, I wanted to ensure that Sumiti's application went ahead, it wasn't my choice to withdraw, I didn't want to withdraw and now for the Department of Immigration to say that is wrong and another major disappointment to me. A partner visa application means I will be on  Temporary Visa for two years before getting Permanent Residency, which was due to me in the first place!"

Himanshu was forced to lodged a Spouse application before his 485 visa expired. This cost the couple another $4575 in DIBP fees. This is on top of the $1530 which was wasted having to withdraw his 190 visa application which the DIBP has not refunded. 

He also faces at least another two years before he will be permanent resident under a spouse application which will affect his ability in applying for certain jobs.


The happy couple during their engagement ceremony.

Interview: Tanaya Das            

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Sadly Himanshu's story is not uncommon. 


Most of the time such experiences of applicants to the DIBP go unreported for they do not even realise they case officers have been in error. It was only a coincidence Himanshu read Volume 297 about Relationship Certificates.


On Himanshu's behalf we asked the DIBP to vacate the decision and grant Himanshu and his partner their PR together.


We were shocked how inappropriate the reply was from Mr. Veaney stating Himanshu had withdrawn his application of "his own accord".


When someone does something "of their own accord" it means that there is no pressure in the decision making process. In this case that was clearly the opposite. 


Back in 2011 we covered the story of Di FAN in Volume 195 of IMMIGRATIONews


In this story Di was advised incorrectly by the case officer that she failed to reach the pass mark and her application would be refused. The case officer gave her the choice of withdrawing the file or be refused. Di withdrew for the same reason as Himanshu, she did not want a rejection decision on her record.


However months later when we brought Di's case to the DIBP with a complaint, their response was very different. They reopened her file and within a couple of days her PR visa was granted.


In our experience the Managers within the DIBP and their willingness to assist to resolve unjust situations can vary as much as the various case officers ability to apply the law correctly.


We asked Mr. Veaney why the case officer did not follow the guidelines regarding Relationship Certificates? Was it deliberate or did he not bother to read them?


No reply.


We asked Mr Veaney to read our article regarding Di FAN and asked why is Himanshu's case different? How can two different managers have such different approaches?


No reply.


 Based upon the Di FAN example we asked Mr. Veaney to reconsider his desion not assist Himanshu?


No reply.


We are now helping Himanshu claim compensation against the DIBP through their internal process. We are also preparing a complaint to the Minister's office. 


It seems lately that the DIBP seems to act in a manner devoid of accountability. 


We want to see what level of accountability exists in the behaviour of case officers.


Himanshu now has no choice to wait another 2 years before he can gain his permanent residency. 


In reality he should be preparing an application for citizenship shortly if the case officer had done their job professionally. 


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