Australian Immigration Daily News

Fraud within the Visa and Citizenship Programmes is a high risk for the Department. People may present bogus documents, conceal information or provide false or misleading information where they would otherwise fail to meet the criteria for a visa. They may commit fraud to facilitate people smuggling, human trafficking, drug trafficking or terrorist operations.

Public interest criterion (PIC) 4020 is intended to significantly increase the level of integrity in visa applications by providing a strong disincentive to those considering giving, or causing to be given, a bogus document or information that is false or misleading in a material particular. It also requires applicants to satisfy the delegate as to their identity.

PIC 4020 is one of the Public Interest Criteria in Schedule 4 of the Migration Regulations 1994 (the Regulations). Where PIC 4020 is among the criteria for grant of a visa, unless the requirement to satisfy PIC 4020 is waived under PIC 4020(4), it must be met in order for the visa to be granted. Failure to satisfy PIC 4020 is grounds for visa refusal not for visa cancellation.

PIC 4020 contains two key areas:

• Fraud relating to bogus documents and false or misleading information
• Satisfaction with the applicant’s identity

What happens if Home Affairs suspects that I provided false or misleading information

The key to successfully tackling PIC4020 is to depends on the nature of the offence.  For example, a person may genuinely be not aware they provided false or misleading information (i.e. by misreading the question).

A good example is demonstrated in the Policy surrounding PIC4020:

Example – bogus document but no ‘purposeful falsity’ 

An applicant applies for a visa using a Migration Agent. The applicant’s purported birth certificate contains information that is inconsistent with the information provided by the applicant in the application. The name, date of birth, and location of birth are consistent with the application details, but the parents’ names on the certificate do not match those provided in the application.

In response to the natural justice afforded to the applicant, she states that she did not have her birth certificate, so the Migration Agent applied for the certificate on her behalf.

The delegate checks with the issuing authority of the birth certificate to verify the legitimacy of the document. The issuing authority confirms that they issued the incorrect birth certificate due to the visa applicant and another person on their records having the same name, date of birth, and location of birth. The issuing authority is able to provide the delegate with a copy of the Migration Agent’s application for the certificate which shows that the correct information was requested by the Migration Agent including having noted the correct first names of the applicant’s parents.

As the issuing authority has taken responsibility for the error and provided evidence of the Migration Agent requesting the correct information, there is evidence that neither the applicant nor the Migration Agent purposefully provided the incorrect birth certificate. While it is ultimately the responsibility of the applicant to ensure that the documents accompanying their application are accurate, even where a migration agent is acting on their behalf, it is not possible to show that the document has the quality of purposeful falsity

PIC 4020 also enables refusal where the applicant or a member of their family unit was previously refused a visa because of a failure to meet these requirements:

If the applicant or a member of their family unit was previously refused a visa under PIC 4020(1) because they provided bogus documents or false or misleading information. This refusal must have occurred between the 3 years before the current application was made and the time of decision on the current application (PIC 4020(2) refers.

If the applicant or a member of their family unit was previously refused a visa under PIC 4020(2A) because they failed to satisfy the delegate as to their identity. The refusal must have occurred during the period starting 10 years before the current application was made and ending when the delegate makes a decision to grant or refuse to grant the visa

As with all matters when it comes to migration, waiver provisions do exist. PIC 4020(4) permits delegates to waive the requirements of any or all of PIC 4020(1)(a) or (b) and PIC 4020(2) if satisfied that:

• compelling circumstances that affect the interests of Australia; or
• compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen
• justify the granting of the visa.

In all other cases, a person may be subject to a three year exclusion period or a ten year re-entry ban if the PIC4020 relates to identity fraud.

Ways to tackle PIC4020

1. Read the correspondence provided by Home Affairs carefully and try to understand whether there are any merits to the accusations put forward
2. Is there a plausible explanation to why the information is false or misleading?
3. What are some of the mitigating factors?
4. Seek professional help if you need it, the ramifications of a refusal of an application on the grounds of PIC4020 are far too serious to be left ignored.