Public Interest Criteria: 4020
Public Interest Criterion 4020 (“PIC 4020”) imposes harsher penalties on Australian visa applicants who “provides or causes to have provided” information that is false or misleading to the Department of Home Affairs (DHA).
There are instances where a visa applicant may engage the services of a migration agent to lodge an application on their behalf, however the information filled in the lodged visa application may be false or misleading (or even worse bogus documents) as a result of the Migration Agent’s actions.
Many visa applicants, and in fact their migration agents struggle to understand how the PIC 4020 works. There have, however been a number of cases before the courts where the conduct of the migration agent was a lot more serious which includes providing fraudulent document to the Department in order to advance their client’s visa application.
IS THE CLIENT RESPONSIBLE FOR THEIR MIGRATION AGENT’S MISTAKE?
A significant decision was handed down in the 2016 case of Gill v Minister for Immigration and Border Protection[1].
The facts in the Gill goes as follows: The VISA applicant approached a migration agent and instructed the agent that he wanted to study English or cooking in Australia. However, rather than lodging an application for a student visa, the agent submitted an application for a skilled visa. A skills assessment from the Trades Recognition Authority was submitted in support of the visa application for the skilled visa, however the Department found that no skills assessment had ever been done.
Here, the applicant claimed 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 visa 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?
Decision
The Federal 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 Federal 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 Federal Court specifically observed (at paragraph 50):
“We accept the appellant’s submission that the operation of provisions such as [section] 98 of the Migration Act and PIC 4020 can be affected by the fraudulent conduct of a migration agent in circumstances where the visa applicant has not colluded in that fraud and there is no evidence to support a finding that the visa applicant was indifferent as to whether the agent used unlawful or dishonest means to obtain a visa.
As noted above, the Minister ultimately did not contest that [section] 98 would not apply to a visa applicant who has relied upon a migration agent to fill out a visa application form and the agent perpetrates a fraud on the visa applicant. In our view, that acknowledgment was properly given.”
The effect of this decision is that where the visa applicant can be shown to be entirely innocent, and had not been recklessly indifferent as to what the agent was doing, then it is entirely possible that neither PIC 4020 not a section 48 bar can be applied against the applicant.
As such, the Gill case provides hope to many visa applicants in similar circumstances who have been defrauded by their migration agent, or at the very least was a simple mistake on part of the agent.
KEY TAKEAWAYS
There are a couple of important lessons that can be learned from Gill:
• Clients should always read all the documents that are going to be provided to the Department as part of their visa application, and raise any issues that they do not understand with the migration agent.
• Clients should always disclose all the information relating to their visa to their agent, and where possible they should be vague about specific facts.
• Migration Agents should take great care when filling in the client’s visa application, and should always send a last final check to the client so that they can sign-off before being lodged or submitted to the Department.
HOW CAN AGAPE HENRY CRUX HELP
Failing to deal with the PIC 4020 can have unforgiving and harsh consequences to a visa applicant. If you require assistance in relation to the PIC 4020, please contact us without delay.
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)-7200 2700 or email us to book in a time at info@ahclawyers.com
[1] [2016] FCAFC 142