Whether the Victim of Fraud by Migration Agent Can Challenge a Refusal That is Made Based on a Failure to Satisfy PIC 4020?
Public Interest Criterion 4020 (“PIC 4020”) enables refusal of a visa if an applicant provides a bogus document or information that is false or misleading in relation to their application, or if the Minister is not satisfied of an applicant’s identity.
In some circumstances, some visa applicants were the victims of fraudulent conduct by their migration agent, which also tainted the subsequent decision-making process of the application of other visas. The issue arises from these cases is that whether these victims of could challenge a refusal that is decided on the basis of a failure to satisfy PIC 4020?
Fact Summary
The visa applicant approached a migration agent and said that he needed a student visa. However, a Skilled (Provisional) Visa Subclass 485 visa was lodged instead. After the application was lodged, the Department informed the visa applicant that they suspected there was false and misleading information contained in the application form, however, the Department did not specify what information contained in the application form they suspected to be false and misleading information.
The visa applicant was invited by the Department to comment on this adverse information however a response was never provided. Therefore, the visa application was subsequently refused for not having a positive skills assessment and insufficient information in the application form and provided misleading and false information.
The applicant appealed to the Administrative Appeal Tribunal after 21 days who found that it did not have jurisdiction because the application for review of the refused application was not received within the prescribed time.
The visa applicant now appealed to the Federal Circuit Court of Australia. In his affidavit provided to the court, the visa applicant claimed that he had never informed the agent that he actually lived in Kingsville or that he ever intended to apply for a Skilled (Provisional) (Subclass 485) Visa. The applicant claimed that he was the victim of fraudulent conduct by his migration agent, which subsequently led to tainted immigration history.
Key Legislations—PIC 4020
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A) The applicant satisfies the Minister as to the applicant’s identity.
(2B) The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: For definition of bogus document, see subsection 5(1) of the Act.
Key Issue
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.
Decision
The Court held in Singh is that Federal Circuit Court does have jurisdiction to hear such a judicial review application. 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 aspects of the Department’s decision-making has been “stultified” with (frustrated or interfered to an extent as to make the whole decision-making process invalid) as a result of the fraud.
The Importance of Singh
The case of Singh is important for arguing the PIC 4020. A visa applicant who has been a victim of fraud by an agent can challenge a refusal on the basis of not meeting the requirements of PIC 4020 in the judicial review system by arguing that the visa application was never validly made, the effect of which avoid the operation of the section 48 bar against the making of future onshore visa applications. And it also possibly avoids the 3-year exclusion period that may result from a failure to satisfy PIC 4020.
How Can We Help
If you are a victim who is frauded by your previous immigration agent and failed to meet the requirement of PIC 4020, please contact us immediately.
Our Immigration Lawyers are well trained to handle highly complex matters so book one of our lawyers to seek professional advice now by calling 02-72002700 or email us to book in a time at info@ahclawyers.com.
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