Australian Immigration Daily News

How strictly will Public Interest Criterion 4020 be applied? 

Will a claim by a visa applicant that there was fraud on the part of a “migration agent”, and that the applicant himself played no part in submitting a “bogus document” to the Department, be effective to get an applicant “out from under” the operation of PIC 4020? 

Or is it the case that PIC 4020 is virtually a brick wall, and that PIC 4020 will result in the refusal of a visa application even if a visa applicant claims that she/he was unaware of the fraudulent conduct perpetrated by a “migration agent”? 

These questions have been tested before the Federal courts a number of times over the past year or so, ever since the Full Court’s decision was given in the Trivedi case.  As readers will recall,  in Trivedi Judge Buchanan held that there is no requirement that it be shown that there be “knowing complicity” by the applicant in the submission of a bogus document in order for PIC 4020 to be applied adversely. 

A decision that has handed down by Judge Griffiths of the Federal Court just yesterday, 9 August 2016, only serves to reinforce the principles stated in Trivedi – see Zhang v Minister for Immigration and Border Protection (2016) FCA 921.  

So while the fact patterns that unfold in different cases may show that the forms of fraud that occur may be infinite in their variety and may be as boundless as human imagination and ingenuity, PIC 4020 is likely to stand as a fixed and unmovable obstacle.  

And that it why it is always best practice for visa applicants to follow the “Perry Mason” principle when preparing their visa applications, and for RMAs to counsel their clients to do so: “Tell the truth, the whole truth and nothing but the truth”.  

And also: that it is highly risky for a visa applicant to “turn the whole process” over to a “migration agent”, and not to be both mindful and vigilant about ensuring that all documents that are submitted in support of the application are authentic and the information provided with the application is accurate and correct. 

So, what happened in the Zhang case? 

As in many other PIC 4020 cases, the applicant was seeking a now phased–out Subclass 885 Skilled Residence visa, with the application having been originally submitted in July 2012  (isn’t it a bit amazing that the review process from initial application to determination of a judicial review application can get dragged out for such a long time?). 

In connection with the application, an IELTS test report was submitted to the Department which contained very high scores – 8.5 for listening, 8.0 for reading, 8.0 for writing and 7.5 for speaking. 

After reviewing this report, the Department tried to verify it through the IELTS on-line verification system.  And this is where trouble began! The Department discovered that the photograph on the IELTS online verification system did not match the photograph on the test report itself. 

How did the applicant attempt to explain this situation? He claimed that in 2012, he had met a man named “Kevin” who had said that he was a “senior migration agent”; that he had provided the results of an earlier IELTS test report to this person, along with “work experience and study documents”; that his last contact with “Kevin” was when he had been provided with a copy of correspondence from the Department acknowledging receipt of his visa application; and that he had been “shocked” to receive notification from the Department that the IELTS test report that had been supplied was “bogus” and that he had concluded that the report must have been “forged” by “Kevin”. 

What kind of arguments did the visa applicant put to the Federal Court to try to avoid the application of PIC 4020? 

It was claimed that, in contrast to Trivedi, where it was alleged that a fraud had been carried out by an IELTS agent without the applicant’s knowledge, that in this case the fraud had been perpetrated directly against the visa applicant, and that the visa applicant was himself a victim of the fraud; that the applicant had not authorized the “migration agent” to arrange for an imposter to sit the IELTS exam and to falsely attribute the results achieved by the imposter to the visa applicant; and that the “migration agent” had completely deceived the visa applicant, and that the applicant had no “hint” that there had been any fraud on the part of the “agent”. 

In short, it was the visa applicant’s case before the Federal Court that he had been “entirely innocent”. 

Was this enough to get him off the hook? No it was not. 

So what went wrong? 

Problem 1: There had been no finding by the Tribunal at the merits review stage that the alleged “migration agent” had perpetrated the fraud.  And when the case was before the Federal Circuit Court at the “first stage” of the judicial review process, there was no actual evidence (for example, in the form of an affidavit) to establish that the alleged “agent” had acted otherwise in accordance with the applicant’s authority or without the applicant’s knowledge.  

There was therefore no “real proof” before the Federal Circuit Court to prove the claims of fraud. 

Would it have made any difference if the applicant had been able to prove that he had not had any knowledge of fraudulent conduct by the “agent”? 

Problem 2: It would not have. The Federal Court (Judge Griffiths) held that under Trivedi, it is not “material” (makes no difference) whether the visa applicant knows about fraudulent conduct on the part of an “agent”. Therefore, even if an applicant is completely unaware that a bogus document has been submitted to the Department on her/his behalf, and finds him/herself completely “shocked and surprised” when notified by the Department that a bogus document has been submitted in support of her/his application, the applicant will nonetheless suffer refusal under PIC 4020. 

The moral: PIC 4020 remains an absolute “buzz-saw” that can be absolutely fatal to an application. 

And applicants are going to find it difficult, if not impossible, to avoid PIC 4020 by shifting blame to their agents – even if they can prove that the fault lies entirely with the agent.  The courts have shown themselves to be very unsympathetic to claims of fraud, and have consistently taken the view that applicants are responsible for the contents of their applications and the authenticity of supporting documentation.  

The Zhang  case tells us that this is going to be the case for the foreseeable future.

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.