Fraud Happens Within the Department of Immigration

A Department of Immigration officer Alex Escala ALLAN pleaded guilty to being part of a scheme to issue fraudulent skilled visas to many people from Vietnam. The scheme involved Mr Allan entering false skill assessment and IELTS details into the Immigration computer, self-allocating the visa applications to himself for processing and then granting the visas fraudulently.

The fraud was picked up by an Immigration inspector at the airport who interviewed a Vietnamese arrival holding one of these fraudulent visas and observed their English language skills were far lower that they should have held if they were genuinely granted the visa.

Then on investigation it turned out there were 59 people holding these visas. Fraud of course has a re-bound effect and each one of those visas were then cancelled one by one. The scheme was very lucrative for Mr Allan, he earned almost $600,000 from the scheme paid by an associate Minh Huy Lam. The tragedy of such a case is the money that would have been lost by the visa applicants. In such arrangements, inevitably the ‘retail’ costs of such visas in Vietnam may well have been in the six-figure sum.

The Queensland Court of Criminal Appeal R v Allan; Ex parte Commonwealth Director of Public Prosecutions [2016] QCA 270 increased his sentence from 18 months to 2 years raising the non-parole period from 8 months to 15 months. Mr Allan also consented to over $420,00 being forfeited to the crown. The court concluded:

1. Abuse of public office and bribery are serious offences and the respondent’s conduct constituted concerning examples of those offences. His behaviour was the antithesis of the public service he was employed to provide. The taking of bribes by officers of the executive arm of government undermines the essence of the honest governance expected by all Australians as a given.  Despite his secure, reasonably paid employment, he seriously betrayed the trust the community had placed in him by accepting bribes to grant visas to those who were ineligible.  Save in exceptional circumstances, such offending calls for a significant term of actual imprisonment to denounce the conduct, punish the offender, and deter others from committing such offences.

The Court then examined comparable cases of fraud of this kind:

1. In Afiouny the offender pleaded guilty to two offences of bribing a Commonwealth official. He paid seven bribes totalling $352,190.00 and US$20,000.00 to a customs officer between July and August 2011 to circumvent between $25.3 million and $27 million of tobacco import duty. He was sentenced to three years and three months imprisonment with a non-parole period of one year and eight months imprisonment.  On an appeal brought by the Commonwealth Director of Public Prosecutions, the New South Wales Court of Criminal Appeal found the sentence manifestly inadequate in that the judge had given an excessive discount for assistance.  The court determined that the starting point sentence was eight years imprisonment.  On each offence a 50 per cent discount should be given for the early guilty plea and assistance to authorities.  The court substituted an effective head sentence of four years imprisonment with a non-parole period of two years and six months.
2. As in Bruce, Tae and Afiouny, the maximum penalty in the present case (count 2) was 10 years imprisonment. The respondent’s offending occurred over 11 months. Count 1 involved 17 wrongful visa approvals and count 2, 42 wrongful visa approvals.  He received over $560,000.00 in bribes, more than $142,000.00 of which was not accounted for.  If undetected, his conduct was apt to undermine local and international confidence in the integrity of Australia’s system of governance.  There were mitigating features: the respondent’s pre-sentence co-operation with authorities; his anticipated future co-operation which was of high value in the prosecution of another; his guilty plea; his prior good history; his rehabilitation and his low prospects of re-offending.
3. This case turns on its own facts but it is broadly comparable in seriousness to Bruce and Tae and not as serious as Afiouny. The cases to which counsel has referred, clearly demonstrated that a sentence which required the respondent to spend only eight months in actual custody was manifestly inadequate, given the objective seriousness of the offending. The appeal against conviction had to be allowed and this Court was required to re-sentence the respondent.

Ultimately the Court of Appeal found that the trial judge may have given too much weight and therefore a discount for co-operation.

There have been several organised fraud schemes over the years involving visas over the years. One example being the Curtin University official in Perth issuing false IELTS results for a ‘fee’. It led to an announcement by the University in August 2011 to close its IELTS program. An investigation was carried out by Western Australia’s Corruption and Crime Commission which led to the conviction of ten persons. In total, 73 charges were laid against 12 persons leading to fines of up to $20,000 and maximum jail of two years given to the former Curtin University employee.

See full details of the Allan Case