Australian Immigration Daily News

What is the legal consequence if a migration agent commits a fraud against his/her client? 

If the agent knowingly and intentionally includes information in the application which is false, does that make the application invalid? 

And will the fraudulent actions of the migration agent be attributed to the client? 

In other words, will the client be made to suffer for the agent’s fraud, even in circumstances where the client was completely unaware of the fraud, did not authorize it, and was indeed a victim of the fraud? 

In other words, where the fraud is committed by the migration agent, without the knowledge or participation of the client, will the application still run afoul of PIC 4020, and be subject to being refused on that ground? 

If these issues sound familiar, it is because they are! 

Scenarios like these have come before the courts many times. 

And a recent decision by Judge Cameron of the Federal Circuit Court reminds us that even where the client is a victim of fraud on the part of the migration agent, that will not relieve the client of responsibility for the application, will not recue the application, and indeed will not have the effect of making the application invalid. 

The case that provides us with this reminder was Kaur & Anor v Minister for Immigration & Anor (2016) FCCA 736 (18 April 2016).  

The fact pattern in this case is so common and “well-worn” that reciting the background risks repeating a proverbial “broken record” (for those readers who have come of age since the demise of “the phonograph”, we refer you to Wikipedia for information about what a “record” was!!!!). 

The story here was that the applicant had approached a migration agent for assistance with extending her visa entitlements in Australia.  According to affidavit evidence that she provided to the Federal Circuit Court, the agent told her that he would apply on her behalf for a Subclass 485 Skilled Provisional visa. When the applicant asked the agent what documents he would need in support of the application, he told her that he needed only the applicant’s passport and her husband’s. 

In the event, however, an application was lodged which stated that the applicant had received a positive skills assessment from the Trades Recognition Authority for the occupation of “cook”:  The application also included a reference number from the TRA as evidence that the skills assessment had been done.  As a matter of fact, though, the applicant had not ever had a skills assessment carried out by the TRA.  

A delegate of the Minister then proceeded to refuse the application on the grounds that it did not satisfy PIC 4020. The Tribunal affirmed the delegate’s decision. 

In judicial review proceedings before the Federal Circuit Court, the applicant submitted that because the migration agent had committed a fraud against the Commonwealth and the applicant by providing false confirmation to the Department that the applicant had obtained a successful skills assessment from the TRA, the application “was not an application and was void ab initio” (Translation: “ab initio” means “from the beginning”, and that the application never had any validity at any time whatsoever. 

Did this argument to the Federal Circuit Court succeed? 

Did the famous formulation from the High Court (in the case of SZFDE v Minister for Immigration & Citizenship that “fraud is capable of unraveling everything” prove to be the salvation of the applicant in this case? 

Was it the case that “if the existence of fraud (was) proved the applicants (were entitles to the relief sought notwithstanding their responsibility as principals for any false and misleading statements contained in the application form”? 

Unfortunately for the client in this case, the answer was “no”. 

The Court did accept that the client had relied on the migration agent and left things to him to prepare the application. It further found that the client had been unaware that before the visa application was lodged that the agent was going to include false and misleading information in the application to the effect that the client had successfully undergone a successful skills assessment, and that this had amounted to a “fraudulent misrepresentation”.  

The Court found that the agent’s conduct in charging the applicant for his services “amounted to a fraud”. 

But did that make the application itself “invalid”? 

No. The Court concluded that simply because there had been fraud on the applicant that did not make the application invalid. 

It took the view that the relevant question in determining whether an application is “valid” is whether it meets the “formal requirements of the Act and the Regulations”. If that is the case, then the application is invalid, even if it contains information which is false and misleading that causes PIC 4020 not to be satisfied. 

So, what was the outcome of this case then? The Court held that even if the applicant had no knowledge of the contents of the application, she was nonetheless responsible as principal for misrepresentations made by the agent. Thus, the Court determined that the Department (and by implication, the Tribunal in affirming the Department’s decision) had acted properly by finding that it did not matter whether the misrepresentations in the application had been made by the client directly or by her agent.  

In other words, even if the agent had committed criminal breaches of the Migration Act by submitting the fraudulent claims concerning the TRA assessment, the client nonetheless remained responsible for the contents of the application. 

So the cautionary message for clients arising out of this case is that it is essential for them to be vigilant concerning what is said in their applications, and that there is risk in simply handing a migration matter over to an agent without closely monitoring the application process.

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