PIC 4020: Are You Responsible for Your Migration Agent’s Mistake?

Public Interest Criterion 4020 (“PIC 4020”) acts as a strong disincentive to visa applicants thinking of providing misleading information or bogus documents in relation to a visa application.  The provisions are unforgiving and the consequences of failing to satisfy PIC 4020 can be harsh.

However, in some instances, a visa applicant may have engaged a migration agent to lodge an application on their behalf, and the reason that there has been misleading information (or even worse, bogus documents) lodged with the application is a result of the agent’s actions.

At its most innocent, an agent may have simply made a mistake, for example, incorrectly completing the online Record of Responses.

There have, however, been a string of cases now before the courts where the actions of the agent were much more insidious, i.e. producing a fraudulent document and advancing the document in the client’s application.

Is the client responsible for the agent’s conduct?

The starting point is Vyas v Minister for Immigration and Citizenship [2012] FMCA 92, which was a case where the visa applicant had submitted an International English Language Testing System (“IELTS”) report to satisfy the relevant English language criterion.  However, the report did not match what was on IELTS’ verification website.

In that case, the applicant pleaded her innocence i.e. that she did not know that the test report she had submitted was incorrect or that it contained false information. The Court said that it did not matter whether the information or the document was provided by the applicant knowingly or unwittingly.  In either case, it was possible to fail to satisfy PIC 4020.

Following this, there was a line of cases involving a certain migration agent who had been instructed by clients to lodge visa applications on their behalf and the agent created fake skills assessment letters for those clients.

Typical in these cases were findings by the court that where a client had given an agent broad authority to make applications on their behalf, the client’s indifference to the acts of the agent meant that, on common law principles of agency, the act of the agent became the act of the client.

Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 appears to be a seminal case in this area of practice, where it was argued that the client had been “duped” by the agent.

In Gill, the Full Federal Court 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 rationale seemed to be (quite rightly) that a client in most instances would rely on an agent to lodge an application and do the right thing by the client. Unless there was evidence that the client had been recklessly indifferent as to what the agent was doing or that the client was complicit in the fraud, the client should not be visited with the consequences of PIC 4020.

The Gill case gives hope to many applicants who, although not necessarily defrauded by a migration agent, may have been an innocent victim of a migration agent’s mistake.

It remains to be seen whether Gill’s case could be more broadly applied.

Lessons

The lessons to be learned from Gill are as follows:

1. Clients should be vigilant about what information and documents they provide to their agent.  Where possible, clients should not be vague about specific facts.
2. Clients should read and understand as much as possible the content of documents they are signing. If there is any doubt, raise this with the agent.
3. Agents should take special care in terms of completing online Records of Responses and what documents they upload.  As a matter of best practice, once an agent completes the online Record of Responses, they should forward this to the client for the client’s sign-off before pressing the “Submit” button. Similarly, all PDF documents on the agent’s system should be carefully viewed before uploading to the Department’s systems.

If you need assistance in relation to PIC 4020, or you are a migration agent and need assistance with PIC 4020, please get in touch with us.

You may also like to read our post Some Recent PIC 4020 Success Stories.