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Important: Full Court Holds PIC 4020 Essentially Imposes Strict Responsibility on Applicants

Do you think that Public Interest Criterion 4020 should impose “strict” or “absolute” liability on a visa applicant?

Should PIC 4020 be applied as grounds for the refusal of an application when an applicant plays no role at all in the creation of a “bogus document”, and that document is in fact created and sent to the Department with the malign purpose of sabotaging or destroying the visa application?

Is it enough that an applicant gives documents to an “intermediary” to send to the Department, and that intermediary then creates the bogus document?

These questions were all central to a case that I conducted on behalf of the visa applicant before the Full Court of the Federal Court.

A decision was handed down by the Court in the case yesterday: Singh v Minister for Immigration and Border Protection (2018) FCAFC 52 (5 April 2018).

I lost this case, with Justice Bromberg holding that the appeal that I had brought on behalf of the applicant should be upheld, and Justices Griffiths and Moshinsksy holding otherwise, that the appeal should be dismissed.

I will tell you the story of the case, and I invite you to state your thoughts in the comments section.

The factual background of the case was that the applicant had sought a 457 visa in order to work as a chef in a café.  The applicant gave his application materials, including his IELTS test result, to his sister, who in turn gave the documents to her husband (the applicant’s brother-in-law), to send to a migration agent for the agent to lodge with the Department.

However, the applicant’s brother-in-law acknowledged in correspondence to the Department that he had used software to alter the IELTS test result, specifically for the purpose of causing the visa application to be rejected.

In short, this was a case where the applicant played no role in the creation of the bogus document, nor did he have any role in sending that bogus document to the Department after it was created with the software program.

So what did the Court have to say?

It was my central submission that: PIC 4020(1) does not impose absolute or strict liability on a visa applicant whenever a bogus document is provided to the Minister irrespective of source and, in particular, when the provision of the bogus document is the product of a fraud perpetrated upon the visa applicant by a third party”.

It was Justice Bromberg’s view that this “proposition should be accepted”.

Justice Bromberg went on to say in His Honour’s reasons that PIC 4020 should not be interpreted so that it is “engaged where a visa applicant bears no responsibility for the physical provision of the document or information to the Minister”.

Justice Bromberg went on to conclude that the AAT had fallen into jurisdictional error by failing to engage with the question of whether the applicant “bore sufficient responsibility to enable the conclusion that he had caused the bogus document to be provided to the Minister”.

Justices Griffiths and Moshinsky adopted a contrary view.

Their Honours held that: “it was open to the AAT to find that the applicant had, at the very least, caused the bogus document (or false and misleading information) to be given to the Department because he was content to have his brother-in-law act as his intermediary”.

Justices Griffiths and Moshinsky also concluded that PIC 4020 applies even where “a visa applicant provides a non-bogus document to a migration agent or other intermediary, and the migration agent or intermediary alters the document in a way which renders it a bogus document for the purposes of the legislative scheme, and then provides that bogus document to the Department acting on behalf of the visa applicant”.

In other words, what the majority of the Court held here was that even where an applicant provides a set of supporting documents to an “intermediary” – whether a migration agent or other person – and then that intermediary alters the document to render it “bogus” within the meaning of the Act  - then PIC 4020 is nonetheless engaged.

Furthermore, Justice Griffiths and Moshinsky held that in circumstances where the applicant had given his application materials to his brother-in-law to submit to the migration agent, where the applicant did not himself have any “direct contact” with the agent, and where the applicant had acknowledged that he had “submitted” his application:

“it was reasonably open to the AAT to find that the (applicant) provided to the Department the documents in support of his visa application, including the bogus document”.

It certainly appears that the effect of the majority judgment of Justices Griffiths and Moshinsky is that PIC 4020 does in fact create a regime of absolute and strict liability.  Under this regime, an applicant will be held accountable for every document that is submitted to the Department, even in a case like this one, where an “intermediary” creates a bogus document for the purpose of defeating the visa application, and the applicant has had no role whatsoever in creating the bogus document or sending it to the Department.

What do you think?

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  • Guest
    kevin Friday, 06 April 2018

    it is your application your documentation your signature pic 4020 was proved absolute liability as sordid as situation this is your authority was given to others to help with your application you were let down by them the ultimate responsibility is yours as the applicant. heart breaking but a correct result immigration are only concerned if pic 4020 had occurred in this case it did the reasons as to why it happened are down to you only

  • Guest
    R Monday, 09 April 2018

    If I understand the facts correctly the 457 application was submitted with an IELTS result that would not meet the requirements set out in Schedule 2.

    There is a serious question to be answered around the original RMA's conduct. Why was an application doomed to failure even lodged? The facts recited above state that the brother-in-law sent the IELTS to a migration agent. Prior to lodgment the RMA must have understood the application would fail.

    Furthermore has Counsel advised the Applicant that there may be recourse against the RMA for submitting a doomed application without specific instructions from the Applicant?

  • Guest
    Toni Wednesday, 11 April 2018

    I agree with you, why did the RMA even lodged the visa seeing that it would fail.

  • Guest
    Jaleh Johannessen Monday, 09 April 2018

    This decision or at least the conclusion that it also extends to Migration Agents is inconsistent with the proper interpretation of the provision in schedule 4. The liability commences with "you giving or causing to be given" to the Department a bogus document. The fact to be established is whether the document was already bogus at the time the applicant handed it over to the agent or to the Department. There is certainly a distinction between a brother-in-law and a migration agent who is licensed by this Department to act as an agent. My client handed over signed forms (956 and 80) to the agent. The agent had lodged the applications without any signed forms 2 months before so that he gets paid the 2nd installment "upon getting a file number from the Department", and in the rush of not losing the applications without any supporting documents he signed the forms 956 and 80 and the applications by forging the applicants' signatures from their passports. The applications are refused on 4020 basis. Who is at fault here? The applicant?

  • Owen Harris
    Owen Harris Monday, 09 April 2018

    Good point Jaleh - clearly the agent - but we all know :your agent is you" - hope your made a claim against the agent's insurance (if the agent even had any). That being the case if your agent lodges then you've lodged and the applicant would need to chase the agent (given OMARA's complete lack of teeth except for the easy cases I wouldnt hold my breath).
    Of course there was clear fraud which should (i say should) vitiate the decision.

  • Owen Harris
    Owen Harris Monday, 09 April 2018

    PIC4020 is draconian by most standards but conversely allowing applicants to say "it wasn't me it was my brother" is not acceptable either. The grey area (asking for documents from overseas and not having control of the entire "supply chain" makes it difficult. I have had a few cases of requests to relatives/friends/lawyers overseas for birth certificates/marriage certificates etc where the friend has cut corners or paid someone to obtain the docs and the end result is a bogus doc. Its hard to prove intent (which is why the act omits it). Perhaps they should have used an RMA in the first place. Bring on legislation requiring all applications to be lodged by an RMA and see if things change. this wont fix everything but it might stop a lot of the fraud (which in turn might mean the Dept looks less closely)

  • Guest
    Edward Monday, 09 April 2018

    In my humble view, the question to be asked is whether the intermediary did have authority, whether actual, implied or ostensible, from the applicant to create the bogus document and then submit to the immigration authority. Usual principles of agency law should apply here. If no such authority was found to have been given to the intermediary, the applicant should not be held liable for the intermediary's fraudulent act.

  • Guest
    Dilip Rai Tuesday, 10 April 2018

    I read the full court decision and I must admit this is a scary one. An absolute or a strict liability upon the applicant, as to PIC 4020, means that even if someone maliciously sabotages the applicant’s application, say through a cybercrime or Identity theft of others, will render the engagement of PIC 4020.

  • Guest Saturday, 14 April 2018

    What if the visa applicant couriered a copy of the original document to the Department Office; and courier boy, due to a personal vendetta, 'alters' the document in such a way that it becomes a bogus document; has the visa applicant "caused to be given" a bogus document?

    Has the visa applicant engaged an "intermediary" to have "caused to be given" the minister the bogus document?

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Guest Thursday, 19 April 2018
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