Visa Scams & Visa Fraud | What Can You Do?

Visa scams & visa fraud of migration agent or fraudulent conduct of migration agent or a third party can sometimes have the effect of subverting or stultifying the statutory function of the decision maker, such as the AAT or IAA in reviewing the Department’s decision to refuse to grant a visa.

In order to successful allege that the fraud of migration agent or a third party denied you the opportunity to apply for a visa, you will need to prove the migration agent, or third party’s conduct is fraudulent or dishonest or recklessly indifference to the truth and accuracy of your visa application. In addition, you must also demonstrate that because of the fraud (visa scams & visa fraud) of migration agent or third party, it prevented the decision maker from carrying his or her duty in determining your visa application.

An example of visa scams & visa fraud of migration agent is the case of Minister for Home Affairs v DUA16 [2019] FCAFC 221 (‘DUA16’). DUA16 arrived in Australia on 28 September 2012 as an unauthorised maritime arrival or UMA. He was represented by a migration agent, Ms Rajesekaram who is also a solicitor. DUA16 through Ms Rajesekaram applied for a protection visa which was refused by the Department. His application was then referred to IAA and Ms Rajesekaram provided the IAA with written submission stating, among others, that DUA16 was ‘perceived to belong to the social group the LTTE and is suspected of a crime, he has been arrested and detained and he has been persecuted by way of sexual abuse by the SLA” and that his “brother who was arrested along side him has successfully sought asylum in Canada”. It was later found that Ms Rajesekaram’s submission or statement relate to another client. The IAA affirmed the Department’s decision not to grant DUA16 a protection visa. In its refusal, the decision maker stated that “I suspect that his part of the submission actually refers to another applicant.”

DUA16 appeals the IAA’s decision to the FCCA (DUA16 v Minister for Immigration [2019] FCCA 1128) raising the relevance of Ms Rajasekaram’s conduct (visa scams & visa fraud). While the Minister argued that Ms Rajasekaram’s conduct was negligence but could not be categorised as fraud, and even if her conduct was fraudulent, it did not stultify (make useless) the IAA’s process because the IAA found her submission did not appear to be about DUA16. The judge finds that “the creation of the submission to the IAA was not explicable as ‘mere negligence’ because substantially the same submissions were used in around 40 cases and, by their very nature, the submissions were meant to be unique to the particular applicant; and at best the conduct in creating the document was reckless, and dishonest. The judge also viewed the following circumstances as relevant:

• Ms Rajasekaram had been dishonest in her evidence before the Court;
• Ms Rajasakaram has created false document to provide to over 40 of her clients;
• Ms Rajasekarm kept no notes of her interviews with DUA16;
• Ms Rajasekaram did not appear to have complied with her professional obligations with respect to accounts; and
• Ms Rajasekarm took no steps to ensure that her clients would not suffer further losses as a result of her default

The judge said that, viewing Ms Rajasekarm’s conduct (visa scams & visa fraud) as a whole, it appeared that she had no intention of properly carrying out her professional task of preparing submissions to the IAA on behalf of DUA16. The judge said, on balance, Ms Rajasekarm “simply did not care” and was not honest in her dealings with her clients and acted without any concern as to whether the documents were true or false. The judge found that DUA16 was not aware of Ms Rajasekaram’s defaults, nor had acquiesced in, or was indifferent, to her misconduct.

The FCCA quashed the IAA’s decision as it has found Ms Rajasekaram’s creation of the IAA submissions was ‘reckless, and at worst dishonest’, as well as being ‘misconduct’ and that she was ‘not honest in her dealings with her clients’ as sufficient to characterise her conduct as involving fraud. The Court also find that Ms Rajasekaram’s conduct as vitiating the IAA review as she concealed to her clients that she intended to use a pro forma submission, believing that had she disclosed that to them, they would not have been prepared to pay for her professional services. In summary, the Court finds Ms Rajasekaram’s conduct was, in effect, recklessly indifferent. Even though the Court accepted that Ms Rajasekaram did not actively set out to deceive the IAA, its finding of reckless indifference in the particular circumstances is sufficient to found a finding of fraud in the relevant public law sense (see Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 per Murphy, Mortimer and O’Callaghan JJ). The Court remitted the matters to the IAA to rehear according to law.

The Minister then appealed the FCCA’s decision to the Full Court disputing the Ms Rajasekaram’s conduct (visa scams & visa fraud) did not vitiate the IAA’s decision.

It was accepted that SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 is the leading authority on visa scams & visa fraud committed by a third party.

The High Court held in SZFDE that the conduct of a person (described as a ‘rogue’), who wrongly claimed to be entitled to practise as a solicitor and migration agent, had the effect that the RRT’s decision was vitiated and should be set aside. This was because the fraudulent conduct had the effect of subverting or stultifying imperative statutory functions of the RRT, specifically the natural justice provisions in Div 4 of Part 7 and ss 425 (RRT to invite a review applicant to appear before it to give evidence and present arguments) and 426A (consequences of a failure to appear following an invitation under s 425). The fraudulent conduct related in part to the rogue’s wrongful claim to be entitled to practise as a solicitor and migration agent, despite the cancellation of his practising certificate and registration as a migration agent some months previously. In advising the RRT review applicants not to attend the RRT hearing, the Court found that he acted for his own-self-protection and to avoid the RRT learning of his apparently unlawful conduct in providing migration advice in contravention of s 281 of the Act. The High Court concluded at [49] that the rogue’s fraud had the immediate consequence of stultifying the operation of the legislative scheme which was intended to afford natural justice to the review applicants (s 425 – invitation to appear and s 426A – failure to appear). The RRT dismissed the review as the applicant had not (appeared) provided any further information in support of the claims for protection.

The decision in SZFDE provides for a 2 limbs test, first limb is the finding of fraud on the part of the applicant’s representative. The second limb is whether the fraudulent conduct constitute a fraud ‘on’ the decision maker, eg IAA or AAT, by subverting or stultifying an imperative statutory function under that review scheme.

The decision in SZFDE demonstrates that the concept of fraud can involve dishonesty and misconduct on the part of a migration agent or solicitor.

The decision in SZFDE held that it is insufficient to establish that there has been a ‘fraud’ committed on the person whose case has been referred to the IAA or AAT for review, it must be established that the ‘fraud’ had the immediately consequence of stultifying, subverting or disabling ‘an imperative’ statutory function.

In DUA16, Mortimer J said what Ms Rajasekaram did amount to a visa fraud on her client. She dishonestly represented to her client that she would make submissions on his case as individual in return for the fees he paid her, concealing from them that she would use a template submissions, with information that had no bearing on his case. She dishonestly purported to take instructions from him on the basis she would be representing what he said to the IAA, but then instead represented to the IAA that what was in the filed submissions were her client’s instructions, when that representation was false. Ms Rajasekaram was recklessly indifferent to the truth and accuracy of the filed submissions. Mortimer J also said that ‘the effect of Ms Rajasekaram’s fraud on the ‘imperative function’ of the IAA to conduct a review of the delegate’s decision.

Mortimer J said that “it is the core obligation and imperative function of the IAA to consider DUA16’s protection visa application afresh which has been affected by Ms Rajasekaram’s fraudulent conduct, whether the effect is described as ‘distorting’, ‘vitiating’, ‘subverting’, ‘disabling’ or ‘stultifying’ the exercise of (public) power by the IAA. The submission which was filed by Ms Rajasekaram on behalf of DUA16 had a sufficiently profound effect on the IAA’s review function so as to result in its review function remaining constructively unexercised.

In Moritmer J summarised Ms Rajasekaram’s fraudulent conduct (visa scams & visa fraud) as:

1. The IAA was falsely informed of DUA16 had instructed Ms Rajasekaram to put his protection claims to the IAA in the way they were expressed in the submission (template submission not related to DUA16);
2. Ms Rajasekaram’s template submission was generic;
3. The IAA was falsely informed about the factual basis of DUA16’s protection claims;
4. The IAA was not given any accurate factual basis for DUA16’s claims;
5. The IAA was not given any accurate submissions connecting the express factual basis for DUA16’s fears of persecution with the country information about Sri Lanka, and was given only inaccurate and false submissions about that connection;
6. The IAA was given the false impression that all that could be said about DUA16’s fear was material which was generalised and generic to all male Tamil asylum seekers; and
7. The result of (4), (5) and (6) was the false impression given to the IAA that DUA16 had nothing particular to him to advance to it about why the factual basis for his claims, and the application of the country information to that factual basis, meant that the contrary to the delegate’s decision he did not meet the criteria for the grant of a protection visa.

Mortimer J also explained that “fraud is infinite in variety” and Ms Rajasekaram’s conduct (visa scams & visa fraud), over apparently approximately 40 cases before the IAA, forms part of “infinite variety”.

Mortimer J found Ms Rajasekaram’s fraudulent conduct was in the nature of a series of false representations made to the IAA, through the content of the filed submissions. Ms Rajasekaram was recklessly indifferent whether the submissions she filed reflected DUA16’s claims and the country information which might support his claims. Ms Rajasekaram simply “went through the motions” knowing and intending to use template submissions from another Tamil client’s case. Mortimer J said that the result was the false representations and impressions. The IAA’s task of determining whether DUA16 met the criteria for the grant of a protection visa was subverted, and could not be described as a “true” exercise of power because the IAA was misled, not only about what DUA16 had instructed Ms Rajasekaram to put to the IAA, but about the factual nature of his claims and the connection with applicable country information. The IAA was also misled into conducting its review on the basis that DUA16 had nothing at all to say to it about why it should accept the factual basis for his claims, and its sufficient connection to what was in the country information. Mortimer J concluded that Ms Rajasekarm’s filed submissions was the only additional, substantive material given to the IAA on behalf of DUA16, the IAA’s assessment of whether he met the criteria for a protection visa entirely miscarried.

More importantly. Mortimer J held that the IAA was aware that Ms Rajasekaram may have filed submissions that may not, in reality, have been about DUA16, and yet went ahead and determined the review, demonstrates that the review was indeed subverted by the fraudulent conduct, that is, the examination of the IAA’s core function of conducting a review of the delegate’s decision to determine whether DUA16 satisfies the criteria for a protection visa and not necessary whether DUA16 was denied an opportunity to persuade the IAA to receive new information.

You should be aware that unless a person is a registered migration agent, he or she cannot advertise a service of giving advice on visa matters or receive a fee for giving migration assistance.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you understand your rights if you believe a third party has committed visa scams & visa fraud or click here to learn what an immigration lawyer can and cannot do for you.

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.