Bogus documents - does one have to be involved in the actual fraud?

We all know that a visa applicant should never submit a ‘bogus’ document or provide false or misleading information when making an application. One might ask however - how much actual knowledge, consent and active participation on the part of a visa applicant is required before PIC 4020 comes into play?

 

This question was recently resolved in Singh v Minister for Immigration and Border Protection [2018] FCA 1392 (13 September 2018) which affirmed a delegate’s decision not to grant the visa based on a bogus document.

 

PIC 4020(1) requires that there should be no evidence that the visa applicant has given or caused to be given to the Minister a bogus document or information that is false or misleading in a material particular in relation to the application for the visa. Note that the wording specifically states “no evidence that the visa applicant has given or caused to be given to the Minister a bogus document or information.

 

The term “bogus document” is defined in s5 of the Migration Act 1958 (Cth) to mean a document that the Minister reasonably suspects is a document that:

 

  1. Purports to have been, but was not, issued in respect of the visa applicant; or

  2. Is counterfeit or has been altered by a person who does not have authority to do so; or

  3. Was obtained because of a false or misleading statement, whether or not made knowingly.

 

The requirement in PIC4020(1) applies 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 visa applicant (PIC4020(3)), and whether or not the visa applicant was aware that the information was purposely untrue when he or she provided it (see: Trivedi v Minister for Immigration and Border Protection [2014] FCA42; (2014) 220 FCR 169) However, it was ruled that an element of fraud or deception by some person is necessary to attract the operation of the provision. (Trivedi at [33])

 

Interestingly, one of the substantive issues looked at by the court was whether or not there should be specific findings about the appellant’s involvement in the fraud.

 

In resolving the issue, it was ruled that this was not a case where the issue was whether or not the agent had ever been instructed to make application for the particular visa category or was aware or indifferent to a fraud by an agent. This was a case where the applicant was actively pursuing this particular visa and, on the applicant’s case, a genuine work reference was provided.

 

The real issue in this case was simply whether or not the reference provided was genuine or bogus – which turned upon whether or not to accept the direct evidence of the applicant or rely upon the circumstantial evidence of the document. In essence, it was ruled that these arguments do not provide a proper basis for judicial review but in reality are only an argument to pursue a merits review on the facts and circumstances of the case.

 

The appellant’s argument in this case that the Tribunal erred in law by failing to make specific findings about his involvement in the fraud and that the Tribunal was required to first address the level of knowledge and/or involvement of the appellant in the fraud before PIC 4020 is set into motion was not upheld.

 

In short – the only question is – was a bogus document submitted by the visa applicant? If yes – there is no need to make specific findings of the applicant’s active participation or involvement in the fraud.

 

 

Disclaimer: The information provided herein is of a general nature only and does not constitute immigration advice. For more detailed and case specific information or advice, please contact SCA Connect.

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