Australian Immigration Daily News

Is there any way to get your client out from under a section 48 bar? 

For example, suppose your client has gone to another migration agent, and that agent has submitted an application for a skilled visa that is based on a fraudulent skills assessment? And the skilled visa is a visa that your client could never have satisfied the eligibility criteria? 

Is there any remedy in this situation? 

Or is there any possibility of getting a declaration from the Federal Circuit Court that the original, fraudulent visa application prepared by the migration agent should not be considered a “valid visa application” so that your client will not be section 48 barred? 

These very important questions concerning the administration of the Migration Act were raised and decided in a decision of the Full Court that was handed down just on Monday, Singh v Minister for Immigration and Border Protection (2016) FCAFC 141 (17 October 2016). 

The simple answer to this question is: “Yes you can!”  There is a possibility of getting a remedy in the Federal Circuit Court. 

The explanation of this decision is a little complicated. So please bear with me! And no, I cannot give you aspirin (or any stronger medication) to help you deal with any headaches that following the trail of this case might cause.  And I promise, on a stack of Bibles, to try my best to make this as easy to follow as possible!!!

First step, the basic facts:  The applicant had come to Australia in 2009 as a “dependent”, or secondary applicant, on a student visa that had been granted to his wife.  Apparently because his marriage was ”experiencing difficulties”, he wished to obtain a visa in his own right. He sought the assistance of the firm “ S & S Migration”.  An application for a skilled visa was then prepared on his behalf, which stated t hat he had obtained a positive skills assessment from the Trades Recognition Authority for the occupation of “skilled plasterer”. 

However, as we have seen in so many other cases discussed on this blog, what then occurred was that the Department wrote to the applicant and informed him that it had found his personal details and application reference numbers in the offices of S & S’s offices, and that the TRA had no actual record of ever having carried out a skills assessment in relation to the applicant.  The Department invited the applicant to comment on an allegation that he had provided false and misleading information to the Department.  The applicant did not respond to this invitation.  So consequently his application was refused on the basis that he had failed to satisfy PIC 4020. 

The applicant then sought merits review before the AAT, which affirmed the refusal of his application. 

He next went to the Federal Circuit Court, seeking  judicial review.  He sought to have the Federal Circuit Court make a determination that the Tribunal had erroneously concluded that he had made a valid visa application, and that the Tribunal did not actually have jurisdiction to review the Department’s decision to refuse his visa application. (There is a certain irony to this aspect of the case, because when the applicant originally sought merits review before the Tribunal, the Tribunal had made a finding that it did not have jurisdiction to hear the application on the basis that it had not been lodged within the required time; this first determination by the Tribunal that t did not have jurisdiction was overturned in the Federal Circuit Court!) 

So what happened then, after the case went back to the Tribunal, and the Tribunal then affirmed the Department’s original decision to refuse the visa application on the basis that the applicant did not satisfy PIC 4020? 

The Federal Circuit Court decided that it did not have jurisdiction to hear the applicant’s case. 

The FCC made this finding that it did not have jurisdiction on the basis that there was “no utility” in the proceeding before the FCC.  The judge in the FCC arrived at the conclusion that there would be “no utility” in the proceedings on the basis that even if it were found that the migration agent had engaged in fraud against the visa applicant, that finding would not change the outcome.  In other words, because the visa applicant had conceded before the FCC that he could not satisfy the criteria for the grant of the skilled visa, then his case would inevitably fail.  

So as the next step, the applicant then went to the Full Court.  There, he pressed the case that there would be “utility” in the proceedings before the FCC, on the basis that the remedy he was seeking – a declaration that the fraudulent visa application was not a valid visa application – would potentially impact on the possible imposition of a section 48 bar against any future visa application. 

And there, the Full Court determined that the Federal Circuit Court had been incorrect to find that there would be no utility in the proceedings before that Court, and that the finding that the FCC did not have jurisdiction was incorrect. 

The Full Court ruled that the Federal Circuit Court does in fact have jurisdiction to hear judicial review applications where there is an allegation that there has been fraud on the part of a migration agent, and where a claim has been made that as a result of that fraud, the underlying visa application has been rendered invalid. 

The Full Court observed that the ultimate success of such proceedings will depend on a number of factors, including whether the visa application has been validly made;  whether the  evidence supports a finding that the visa applicant has been the victim of fraud;  and whether the fraud has “stultified” some aspect of the decision-making process. 

But the good news, the important news and the positive news coming out of this decision is that in the proper case, where a migration agent has submitted an application that is based on fraudulent material without the knowledge or participation of the applicant, there is a prospect that the applicant can go to Court, have that application declared invalid, and possibly avoid the imposition of a section 48 bar against further onshore visa applications.

That is truly significant.  And it makes this decision one that is very much worth knowing about!

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