Australian Immigration Daily News

Followers of this blog will recall that Migration Alliance posted an article this past Tuesday (22 September 2015) concerning two recent cases mentioned in Peter Bollard’s newsletter involving Public Interest Criterion 4020. 

That post by Migration Alliance (entitled: “Be very afraid” (in other words, of the possible obstacle that         PIC 4020 might present to successful visa applications)) piqued my curiousity about what happened in those cases, and about how serious a problem PIC 4020 really is. 

This post provides details about one of the cases mentioned in Peter Bollard’s newsletter, Katragadda v Minister for Immigration & Anor, (2015) FCCA 2478 (11 September 2015). 

After reviewing that Court decision, I have formed the view that while PIC 4020 may present a potential obstacle, it should not, as a practical matter, present a problem 99.9% of the time.  Exactly why do I believe that this is the case? Because in most cases it should be relatively simple and straightforward to satisfy PIC 4020. All that needs to be done is to ensure that the information provided in the application form, and the material provided to the Department in support of the application, is true, correct and accurate in all respects. RMAs will be doing this in the ordinary course of assisting and advising their clients.  As the decision in Katragadda illustrates, the only way of running afoul of PIC 4020 is to provide an answer on an application form, or to submit supporting evidence, that is “purposely untrue” or is a “bogus document”. 

Starting with “first principles”, what does PIC 4020 actually say? The relevant text is reproduced below:

“4020   (1)  There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:     

(a) the application for the visa”

So, what happened in the Katraagadda case that caused the applicant to run afoul of PIC 4020? 

The story was that the applicant had sought a “Skilled (Provisional)” visa, Subclass 485.  He had sought the assistance of a migration firm with the preparation of the application. The application form recited that the applicant had undertaken a skills assessment through Trades Recognition Australia (“TRA”) for the occupation of “automotive electrician” and had provided a “reference number” for this claimed skills assessment. However, the Department was informed by TRA that it did not, in fact, have any record of a skills assessment in relation to the applicant, and further, that the “reference number” that had been provided for the claimed skills assessment, did not in fact exist. 

The consequence was that the Department proceeded to refuse the visa application on the grounds that PIC 4020  had not been satisfied, in that “false and misleading” information had been submitted to the Department.  The Migration Review Tribunal affirmed the refusal of the application, and an application for judicial review to the Federal Circuit Court then followed. 

In the proceedings before the Federal Circuit Court, the applicant claimed that his migration agents had been responsible for lodging the fraudulent information concerning the skills assessment with the Department, and that they had done so without his knowledge or participation. 

Unfortunately for the applicant, this claim was insufficient to establish that the MRT had committed “jurisdictional error” by affirming the refusal of his application. The Court ruled that it is not necessary to show that an applicant has personally submitted false information or bogus documents to the Department, or even that the applicant was aware that his migration agents had submitted the false information. In making this ruling, the Federal Circuit Court followed the ruling of the Full Court in the case of Trivedi & Ors v Minister for Immigration & Border Protection & Anor (2014) FCAFC 42. In Trivedi, the Court held as follows: 

“….it is not necessary (in order for PIC 4020 to be applied and for a visa application to be properly refused) to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact”. (emphasis added) 

In other words, the ruling of the Court in Trivedi, and as also applied in the Katragadda case, is that it is not necessary that the visa applicant have any role at all in submitting false or misleading information or documents to the Department, or even that the applicant have any knowledge at all that her/his migration agent has submitted such material on her/his behalf to the  Department.  All that matters is that the information that has been submitted be “purposefully untrue”.  If material that has this quality of being purposefully untrue is given to the Department, that circumstance alone is sufficient to be fatal to a visa application, and to cause it to be rejected on the basis of a failure to satisfy PIC 4020. 

So how can a visa applicant who is completely innocent, and who is seeking a visa in complete good faith while relying on the assistance of a migration agent, protect her/himself against this kind of outcome? Well, one would certainly hope that the kind of circumstance that arose in Katragadda is truly rare and isolated, and that it will be the truly unusual and extraordinary case when a migration agent submits false information or documents without the knowledge of their clients.  But the result here does suggest that a visa applicant would be well-advised to take an active role throughout the process of preparing the application, and not simply “leave everything in the hands of the migration agent”.  In particular, it is my own view that it is good practice for the RMA to take steps to ensure that the applicant has reviewed the application forms and all supporting documents, and has confirmed to the RMA that everything is true and correct. 

What do you think of the result in Katragadda, and of the principles that were declared by the Full Court in the Trivedi case? Is it harsh and unfair to hold an applicant responsible for the actions of their RMA, in whom the applicant has placed her/his trust and confidence? Or would it be fairer for the courts to decide that PIC 4020 should be applied against an applicant only when the applicant knows that the information that is being provided to the Department is false, or that documents are not genuine? 

Whatever the case, as I have said above, it is my own perspective that PIC 4020 should not be a major obstacle to a successful visa application. So long as everything that is said in the visa application, and all supporting materials, are true and correct, there really shouldn’t be anything to worry about!

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