Prosecutions relating to the Migration Act Andrea Pavleka

Prosecutions relating to the Migration Act Andrea Pavleka February 2017

Overview of the CDPP • The Commonwealth Director of Public Prosecutions is an independent statutory agency, which has responsibility for prosecuting federal crimes. • It is not an investigative agency. • Briefs of evidence are compiled by investigative agencies and the CDPP conducts the litigation ie prosecution. • Over 40 agencies refer cases to the CDPP – but key agencies include the AFP, ABF, DIBP and State and Territory police forces. • The CDPP receives cases either as summons matters, or arrest matters. • The CDPP has offices in each capital city, as well as in Townsville and Cairns. We have around 430 staff - predominantly lawyers.

What crimes does the CDPP prosecute? • CDPP prosecutes a wide variety of crimes, including • drug importations • frauds on Commonwealth Government (eg medifrauds, Centrelink fraud, tax fraud) • Terrorism • Insider trading and foreign bribery • Money laundering • Online grooming/ procuring of children and child pornography offences • Migration frauds • People smuggling

Key Policies – how is the decision made to prosecute someone? • The CDPP operates under some key policy frameworks, and most critical of all is the Prosecution Policy of the Commonwealth. • The CDPP will only conduct prosecutions where: – There is a reasonable prospect of conviction; and – It is in the public interest to prosecute the matter. 4

Offences relating to the Migration Act The CDPP’s prosecutions in relation to the Migration Act generally relate to 2 main types of cases: • Visa frauds – these are cases where visas are obtained on a dishonest basis. • People smuggling – this is where a person organises or facilitates the bringing to Australia or the entry into Australia of a non-citizen who has no lawful right to come to Australia (ie does not have a visa).

Visa Frauds • This cases can be approached either as offences under the Migration Act or as offences under the Criminal Code (Cth). • The type of offence charged will depend on the facts and circumstances of the case, and will be dependant on which charge is the best fit for the conduct. • Examples • Qi Zhou v The Queen [2014] VSCA 123 • M and G – recently concluded trial in the District Court of Queensland

Zhou – Case example • Large scale and sophisticated migration fraud • Charge was one of conspiracy to dishonestly influence a Commonwealth official, s. 135. 4(7) Criminal Code • Involved a ring of criminality operating between 2006 - 2009. • Zhou operated a business offering migration, legal and financial services to clients, largely to Chinese students, and offered a range of options that would enable them to obtain visas or permanent residency to stay in Australia. 7

• A lengthy investigation conducted by the AFP and Dept of Immigration uncovered Zhou’s business as: • • Collecting fees as a migration agent when not registered as a migration agent Large scale production of false documents (including false work references and educational qualifications) The arranging of contrived marriages Around 100 files in Zhou’s business contained key false documents. The false documents were created for submission to various Cth Departments, and ultimately to Dept of Immigration in order to secure visas either on the basis of the General Skilled Migration program, or via a spousal visa. The clients paid fees of around $1. 3 million for the services provided by Zhou. Sentenced to 4 yrs 7 mths to serve a minimum of 2 yrs 7 mths. 8

M and G – Migration Fraud – Case Example • Recently concluded migration fraud case, subject to appeal • M was a registered migration agent, and G was a marriage celebrant. • They were charged with offences under s. 240 Migration Act – arranging marriages to obtain permanent residency as well as offences under s. 135. 1(7) Criminal Code – dishonestly influence a Commonwealth official. • For a fee, M would find Australian women, via ‘recruiters’, to enter into contrived marriages with Indian males, who were in Australia on student visas. 9

• O would then, as a marriage celebrant, marry them. • From there false documents would be prepared by M and the Indian males to put forward to the Dept Immigration. Lies were told about the nature and duration of the marriages. • Around a $100, 000 were paid in fees by the grooms. • Following a trial, both accused were found guilty. • M was sentence to 4 yrs 6 mths with a non-parole period of 2 yrs 3 months • O was sentenced to 3 yrs with a minimum term of 18 mths. 10

Challenges in migration fraud prosecutions • There may be large amounts of documentary material to be analysed • Independent evidence can be difficult to obtain, as often all parties are complicit. • This may mean that lower level offenders are indemnified so that they can give evidence against the main players. • Indemnities are given by the Director in circumstances where the accomplice’s testimony is necessary to secure the conviction of the defendant and the accomplice can be regarded as significantly less culpable than the defendant. • Witnesses may no longer be in the country to give evidence 11

• These offences are regarded as being very serious by the courts. • That is reflected in both the sentences that are imposed, and the sentencing remarks of the courts. • Sentencing remarks 12

People Smuggling • The key offence provision that is most often prosecuted is s. 233 C Migration Act – facilitating or organising the bringing into Australia of a group of at least 5 persons who are non-citizens and who have no lawful right to come to Australia [ie no visa – s. 228 B] • The provisions focus on crews of vessels and organisers • The cessation of boat arrivals into Australia has meant that very few cases have been prosecuted by the CDPP in recent years • The cases currently before the courts are almost exclusively ‘organiser’ rather than ‘crew’ cases. 13

People Smuggling – Extradition of Organisers • Organisers of people smuggling ventures are often located offshore. • In order to prosecute those persons, extradition proceedings are required. • This is usually a very lengthy process. • However, in the last 5 years or so, various persons have been extradited to Australia, from Indonesia, Malaysia and Germany. 14

Said Mir BAHRAMI – case example • Arrested in Malaysia and extradited to Australia following a contested extradition. • Charged with people smuggling offences relating to organising 3 vessels that arrived in Australia in 2010 – 2011. • He ran a trial of 8 weeks duration. • He was convicted of a range of people smuggling offences, and sentenced to 11 yrs 3 mths jail with a non-parole period of 7 yrs 3 mths. • Bahrami operated from Indonesia and his role was multifaceted. • Many of the witnesses were passengers on the vessels. 15

Impersonating a Commonwealth Officer – a migration scam of a different kind • Alam v The Queen [2015] VSCA 48 • Alam pretended to be a from the Dept of Immigration. He, together with others, duped a group of Bangledeshi construction workers in Singapore. The victims thought they were lodging visa applications and paying visa fees ($88, 000) with the Australian Government, but instead they were lodging their materials with fraudsters (including Alam) who took their money. The victims were left with no visas and no money. • Sentenced to 12 mths jail to serve a minimum of 4 months. 16