Australian Immigration Daily News

 …..”the purpose of PIC 4020 (is) to render visa applicants ultimately responsible for the veracity of the information and documents supplied in support of the application….the Applicant is not absolved from responsibility because he left everything up to his agent”.

How often have we heard this type of pronouncement from the courts?

And how often have we seen fact patterns where visa applicants have “left everything” up to their agents, only to discover to their misfortune that, without the applicant’s knowledge, the agent has submitted  either a bogus document or information that is false or misleading in a material particular, causing the application to “run afoul” of PIC 4020?

I would venture to comment: “too many times”.

And yet this week, there is yet another case reported through Austlii – this time Singh v Minister for Immigration & Anor (2015) FCCA 2776 (14 October 2015) with this same  (I am tempted to go so far as to apply the adjective “ridiculous”) fact pattern!! 

This is yet another case that “hammers home the point” that applicants venture on a “perilous course” when they decide to “hand the whole process over to their agent”. 

As RMAs know so well, it is just so critically important that clients and their migration agents work cooperatively with each other at all stages of the visa application process, that the visa applicant is aware of what type of visa is being sought, and that the visa applicant is familiar with every document that is submitted in support of the application and has verified its accuracy.

As Sherlock Holmes would put it, “Elementary, my dear Watson!”  But perhaps not!  These cases keep getting reported on Austlii so I doubt very much we have seen the last of them.

We have seen the circumstances in Singh before: The applicant was an Indian citizen who was in Australia on a student visa.  A few weeks before that visa was due to expire, he went to a migration agent who advised him to “apply for a visit to permit him to work”, and paid the agent a fee of $1,500.

It was the applicant’s evidence before the Federal Circuit Court (where judicial review proceedings were taken after the Department refused the visa application and after the MRT affirmed the refusal) that:

• He did not complete the visa application form himself;
• Provided no documents to the migration agent before the application was made;
• Expected the agent to “take care of” the application;
• Did not know what information would need to be contained in the application;
• Never reviewed the application before it was lodged.

In the event, what happened was that an application for a “Temporary Graduate” (Subclass 485) visa was submitted to the Department by the agent on behalf of the applicant.  This application stated that the applicant had obtained a skills assessment from the Trades Recognition Authority. However, checks by the Department revealed that the TRA had no record of having carried out a skills assessment in relation to the applicant. 

The question before the Court in the judicial review proceedings was whether the applicant could be held responsible for the conduct of his migration agent in providing to the Department a bogus document/false or misleading information. 

The Court (Judge Whelan) answered this question with a resounding “yes”!  

The Court reasoned, first, that there was an “agency agreement” between the applicant and the migration agent through which the agent sought the visa on behalf of the applicant. Further, referring to the “general laws of agency”, the Court observed that “a principal can be liable for the actions of an agent, even if the agent’s act is unlawful or amounts to fraud”.  Thus, the Court concluded that: “it was not necessary for the Applicant to be aware that false information was provided by the agent or that he needed to give instructions to the agent to provide false information in order to be responsible for false or misleading information being given”. 

The Court also relied on section 98 of the Migration Act as a further reason for holding the applicant responsible for the false information that his migration agent had provided. Section 98 provides as follows  

“A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.” 

Judge Whelan held that section 98 of the Act is applicable in relation to PIC 4020 and that therefore “an applicant should be deemed to have completed an application form where he or she causes a form to be filled out on his/her behalf”.  

This decision makes it clear beyond doubt that it is not going to be possible to “salvage an application” by claims or evidence that the applicant “did not know” that false or misleading documents or information was submitted to the Department or “was not complicit in” the submission of such material. Again, as I have said in another recent post concerning PIC 4020, when it comes to visa applications, the guiding principle must always be to “tell the truth, the whole truth, and nothing but the truth”.  PIC 4020 should never come into play!

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