Australian Immigration Daily News

As all RMAs will know, the submission of fraudulent information or material in support of a visa application can have disastrous consequences for the client/visa applicant.  To start with, lodging false or misleading information can cause a visa application to be refused on the grounds that the applicant does not satisfy Public Interest Criterion 4020. Furthermore, submitting false or misleading information with one application may prevent the person from obtaining another visa for a period of 3 years.  For these reasons, the importance of ensuring that all information that is given to the Department as part of a visa application is completely true and accurate cannot be overstated.

A decision of the Full Court of the Federal Court of Australia that was handed down earlier this year will be of interest in this regard, as the decision explores the circumstances under which a visa applicant can be held responsible when the applicant’s migration agent is responsible for providing the fraudulent information to the Department.  The case that led the Court to consider this issue was Prodduturri v Minister for immigration and Border Protection FCAFC 5 (29 January 2015).

The facts of the case were that the visa applicant engaged a firm of migration agents to assist him with lodging an application for a “subclass 485” visa for temporary skilled employment with the Department.  The applicant’s instructions to his migration agents were to the effect that they should not file the application for the visa if he was not entitled to it.  The visa applicant then left the preparation of the application entirely in the hands of his agents.  As the Migration Review Tribunal put it in its decision affirming the Department’s ultimate refusal of the application:

“(The applicant) appeared to have been indifferent as to the content or the nature of the application”.

What then occurred was that an application was lodged with the Department which claimed that the applicant had been assessed by Trades Recognition Australia as having skills that qualified him as a cook.  The claimed skills assessment was even put forward with a serial number purporting to have been issued by the TRA.  An investigation that was carried out by the Departmental officer who was reviewing the application revealed, however, that the applicant had never in fact been assessed as having the qualifications of a cook by the TRA,  and the TRA had not assigned the claimed serial number, or for that matter any serial number, to an assessment of the applicant’s skills.

Upon discovering that a fraudulent skills assessment had been submitted with the application, the Department refused it on the grounds that it did not satisfy PIC 4020.  Although the visa applicant readily conceded that he was not entitled to the grant of a subclass 485 visa for temporary skilled employment as a cook, he nonetheless challenged the refusal  to the MRT and then, after the MRT affirmed the refusal, to the Federal Courts.  The applicant pursued this course because he wished to avoid the imposition of a further 3 year bar against the grant of any other visa application.

The primary issue before the MRT and the Federal Courts was whether the visa applicant could be held responsible for the fraud.  It was not in controversy that the applicant’s migration agents had made a false statement to the Department regarding the skills assessment.  Further, it was the applicant’s evidence before the MRT that he did not know the contents of the application and that he had therefore been ignorant of the fraud.

The conclusion of the Full Court was that in this particular factual scenario, the applicant should not be held responsible for a fraudulent submission by his migration agents.  However, it should be noted that there are clear suggestions in the Court’s judgment that the outcome might have been different, and the applicant would have been found responsible for the fraud, if there had been evidence that the applicant had assisted his agents in carrying out the fraud – in other words, that he had been “complicit”.

There is of course a clear and unmistakable lesson that comes out of this case for visa applicants: namely, it is highly risky to place the entire process of preparing and submitting an application in the hands of a migration agent, without being informed about the contents of the material that is given to the Department in support of the application and without confirming that the material is true and correct. After all, it is the visa applicant that stands, primarily, to suffer the consequences if fraudulent information is submitted to the Department without her or his knowledge, both in terms of likely rejection of the visa application in question and the imposition of a possible 3 year bar against obtaining a visa. 

The decision thus re-emphasizes the “truism” about the need for a close and cooperative working relationship between client and migration agent, and full and honest discussion of all materials that will be sent to the Department in relation to the application.

This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837