Australian Immigration Daily News

Is there any way to salvage a client’s situation if a third party submits a bogus document or information that is false and misleading in a material particular to the Department, and Public Interest Criterion 4020 is engaged, leading to the refusal of a visa application? 

Or is PIC 4020 an insurmountable barrier, a complete “brick wall” that there is no way to get around? 

In the wake of the Full Court’s decision last week in my own case, Singh v Minister for Immigration and Border Protection, it might seem that PIC 4020 really is a brick wall. 

Readers will recall that in Singh, the claim was advanced that the applicant’s brother-in-law had falsified his IELTS test result for the specific purpose of causing the visa application to be refused. 

In other words, the Full Court held in Singh that even in cases where a third party delivers a bogus document to the Department without the applicant’s knowledge or consent, and does so in order to sabotage the visa application, then PIC 4020 will come into play and form the basis for refusal of the application. The effect of the majority decision (Justices Griffiths and Moshinsky) in the Singh case is that even if an “intermediary” - a migration agent or other person – creates a fraudulent document without the applicant’s knowledge and likewise sends that fraudulent document to the Department without the applicant’s knowledge, the applicant will still be taken to have “given or caused to be given” the fraudulent document. 

And we have seen in the Trivedi case and its “progeny” that it simply does not matter whether an applicant is aware that a bogus document has been prepared by a third party, or has been “complicit” in its production. 

So, it really does seem (at least for now) that it really won’t be workable for applicants to argue that PIC 4020 should not be applied in cases where there has been fraud by a migration agent or a third party. The recent decision of the Full Court in Singh certainly seems to suggest that the courts will interpret PIC 4020 to be virtually a “strict liability” regulation, so that a visa application can be refused whenever a fraudulent document is submitted to the Department, even if it was submitted on behalf of an applicant by someone who was intent, not in advancing the visa application, but rather, was acting with the purpose of destroying or defeating the application. 

On the state of the existing law, there is only one approach that will work to salvage an applicant’s situation. And unfortunately it is an approach that will offer hope only in cases where the applicant continues to hold a valid substantive visa application – it won’t work where the applicant’s previous substantive visa has ceased, because then the applicant may become entangled in “Section 48” problems which will prevent the making of a further visa application; also having a visa application declared to be invalid may have the consequence that the applicant is now onshore in Australia without any valid visa at all (since there would be no bridging visa if the underlying application were found to be invalid). So the applicant could then wind up being an unlawful non-citizen. 

This solution to “salvaging” an applicant’s situation was identified by the Full Court in two cases that were decided in October 2016 – Gill and Singh – and was re-affirmed in a case that was decided by the Full Court late last year, Maharjan v Minister for Immigration and Border Protection (2017) FCAFC 213 (15 December 2017). 

What happened in Maharjan was that the applicant had sought a further student visa. It was claimed that the applicant’s mother in Nepal had hired an agent to arrange for bank records to be submitted to the Department to prove that the applicant had financial capacity to meet her tuition and living costs in Australia, and that this agent had fraudulently provided false documents to the Department. 

The approach suggested in the Maharjan case is for the applicant to structure its case around the claim that as a result of the fraud by the third party (migration agent or other person) there has been no valid visa application at all. 

Under the holding in Maharjan, in order to succeed, it will be necessary for the visa applicant to show: 

* That the application was made without the actual or implied authority of the applicant; or

* The applicant did not have legal capacity to authorise another person to make the application on her or his behalf (for example, the applicant was a minor person);

* The applicant was neither “complicit” in the fraud or “indifferent” to whether unlawful or dishonest means were used to attempt to obtain a visa; and

* The submission of the fraudulent document has somehow “stultified” the process of review and determination of the visa application (in other words, interfered with the fair processing of the application). 

Of course, it may not always be possible for an applicant to satisfy the standards of proof required in Maharjan. 

But at least this decision, when read together with the prior Full Court decisions in Singh and Gill, show that there is an avenue, however limited and difficult it might be, to salvage an applicant’s situation in cases where “third party fraud” has triggered PIC 4020 and has resulted in the refusal of an application.