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News Flash: Important Changes to Public Interest Criterion 4020!!

What a difference a few words can make!

To paraphrase my good pal from America Donald Trump (who was “elected”, so to speak, just 1 year ago!), "Yuge!” (translation from Trump-speak: “Huge!”)

On 2 November 2017, the Governor General made a hugely consequential change to Public Interest Criterion 4020 through the promulgation of the  Migration Legislation Amendment (2017 Measures No. 4) Regulations 2017. 

The changes to PIC 4020 will come into force very shortly: they will apply to all visa applications made on or after 18 November 2017.

Here is the change to the wording of PIC 4020 that will be introduced by the amending regulations:

PIC 4020 currently reads:

4020 (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part-5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a) the application for the visa; or

(b) a visa that the applicant held in the period of 12 months before the application was made”.

The amendments will alter the language of PIC 4020(1)(b) so that it will provide as follows:

(b) a visa that the applicant applied for, in the period of 10 years before the application was made”.

As stated in the Explanatory Memorandum that accompanies the new regulation, the change in the wording of PIC 4020 will have the effect of expanding the period in which previous instances of “visa fraud” can be considered from the current from 1 year before the making of the application that is under consideration to 10 years before the application.

The change will also extend the application of PIC 4020 so that it will reach  instances of fraud relating to visa applications made within the previous 10 years, and not just, as has been the case prior to the amendments,  to instances of fraud in relation to visas actually held in the 12 month time period before a new application is made.

The Explanatory Memorandum for this amendment states that the underlying intention of the amendment is to prevent applicants from withdrawing their applications after they have been notified by the Department of suspected fraud, and then re-attempting their applications after 12 months have elapsed, using only new, genuine documents that can “withstand scrutiny” in support of the renewed visa application.  According to the Explanatory Memorandum, the expanded 10-year “exclusion period” is meant to prevent applicants from simply “waiting out” the period after a previous “fraud”. 

So this change will effectively eliminate  a strategy that has been available to enable applicants to avoid the application of PIC 4020 and to pursue further visa applications in the future.

The justification for the amendments is stated as follows in the Explanatory Memorandum:

“The Government’s position is that the amendments to PIC 4020 are reasonable and justified in order to protect the integrity of the migration program and ensure that people who lie to get a visa, or provide false documents are not entitled to a visa.”

What do you think of this change? Fair and appropriate? Or unjust and overly harsh?  

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Comments

  • Guest
    Zack Wednesday, 08 November 2017

    If I read correctly, with this change 4020 (2AA) will not enable the applicant who was under 18 and failed PIC 4020 to make a new application. As a result they will be barred for 10 years as well.

  • Guest
    kevin Thursday, 09 November 2017

    as a child under 18 years of age you obtain the advantages of your parents visas whatever these are you also get the disadvantages if it is 4020 at the time of fraud ( later confirmed ) is committed everybody should have their visas cancelled what has being under 18 years of age have to do with this i do not get your point here

  • Guest
    Gaganjot Singh Bhatia Friday, 10 November 2017

    Will the non grant period still be 3 years for 4020 (1) (b)?

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Guest Monday, 20 November 2017
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