Australian Immigration Daily News

There has been another hugely significant decision from the Full Court on the question of whether a visa

applicant will be held responsible for a fraud carried out by a migration agent. 

The decision was handed down in the case of Gill v Minister for Immigration and Border Protection (2016) FCAFC 142 (17 October 2016).  

This case was heard by the Full Court together with the case that was discussed yesterday on the Migration Alliance blog, Singh v Minister for Immigration and Border Protection (2016) 141, but it involved a slightly different question.  

In Singh, the question that was raised was whether the Federal Circuit Court has jurisdiction to hear a judicial review application in circumstances where a migration agent has submitted fraudulent information in support of a visa application, and there is no possible basis upon which the applicant could satisfy the criteria necessary to be met for the grant of the visa in question.  

The answer given in Singh is that the Federal Circuit Court does have jurisdiction to hear such a judicial review application.  In Singh, it was held that the question of whether such a judicial review application would actually succeed will depend on whether the fraud can be proven, and also on whether it can be proven that some aspect of the Department’s decision-making processed has been “stultified” (frustrated or interfered with to an extent as to make the whole decision-making process invalid) as a result of the fraud. 

The importance of Singh is that a visa applicant who has been the victim of fraud by an agent can challenge a refusal that is made on the basis of a failure to satisfy PIC 4020, and through that challenge in Federal Court (if successful), be able to avoid the operation of the section 48 bar against the making of future onshore visa applications, and also possibly avoid the 3-year exclusion period that may result from a failure to satisfy PIC 4020.  So the Singh case, just by itself, is really really important! 

If anything, the companion Gill case is even more consequential and significant!                     

The question in Gill can be stated in the following terms:  Is fraud on the part of a migration agent always to be held against the visa applicant, no matter what, so as to bring into play against the applicant PIC 4020 and the section 48 bar? Or are there circumstances where the fraud of the agent not be imputed to, or “sheeted home” against the applicant? 

The fact pattern in Gill was not that unusual, and is very similar to many other Federal court cases where there has been an allegation of fraud on the part of the migration agent:  The applicant approached a migration agent and instructed the agent that he wanted to study English or cooking. However, rather than lodging an application for a student visa, the agent submitted an application for a skilled visa.  As it turned out, a skills assessment from the Trades Recognition Authority was submitted in support of the application for the skilled visa.  And it turned out that no skills assessment had ever been done. 

Critically important in this case was the applicant’s claim that the agent had submitted the false skills assessment to the Department without his knowledge. 

So the question in the case was as follows: Was it enough that the applicant had engaged the migration agent to assist him, and that he was thereafter “indifferent” as to the actions of the agent, for the fraud of the agent to be “held against” the applicant? 

The Full Court held in Gill that simply because a visa applicant gives a migration agent “general authority” to prepare a visa application, and is thereafter “indifferent” as to the rest of the process of preparing the visa application, that circumstance alone is not sufficient to make the applicant responsible for the agent’s fraud. 

Rather, the Full Court held that there is a critical difference between circumstances where a visa applicant engages a migration agent and gives the agent authority to do “whatever is lawful and proper to achieve the objective of obtaining a particular visa” and circumstances where the applicant is indifferent to whether the agent uses lawful or unlawful means to obtain a visa.  

The Full Court’s decision plainly suggests that where the evidence shows that the visa applicant has not “colluded” in the fraud and there is also no evidence to suggest that the applicant was indifferent as to whether the agent uses unlawful or dishonest means to attempt to obtain a visa, then a fraud on the part of the migration agent will not be imputed to, or held against, the applicant. 

The effect of this decision is that where the visa applicant can be shown to be entirely innocent, and the fraud has been carried out by the agent, then it is entirely possible that neither PIC 4020 not a section 48 bar can be applied against the applicant. 

And to that extent, it surely appears that this decision in Gill overrules the Full Court’s earlier decision in the Trivedi case, where it was held that PIC 4020 can be applied against an applicant where fraudulent material is submitted in support of an application – in other words, that the applicant is “strictly liable” for the contents of the application – even where there is no complicity on the part of the applicant in the preparation or submission of fraudulent material. 

IT IS HARD TO OVERSTATE HOW IMPORTANT THIS DECISION IS!!!!!!!!!!! 

APPLICANTS WHO HAVE HAD THEIR APPLICATIONS REFUSED ON THE BASIS OF FRAUDULENT CONDUCT ON THE PART OF A MIGRATION AGENT OR OTHER THRID PARTY ARE ENCOURAGED TO SEEK LEGAL ADVICE AS TO HOW THIS DECISION IMPACTS UPON THEIR CIRCUMSTANCES, AS ARE REGEISTERED MIGRATION AGENTS WHO ARE ASSISTING CLIENTS WHO HAVE SUFFERED REFUSALS DUE TO FRAUD BY A PREVIOUS AGENT!!

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