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?