Australian Immigration Daily News

What is the correct interpretation of Public Interest Criterion 4020? 

Suppose a “bogus document” has been submitted to a relevant skills assessment authority, and that authority then issues a skills assessment based on that document. 

Does that mean that PIC 4020 has been engaged, and that your client's application is “dead on arrival”? 

Or does the “bogus document” need to be more than simply “bogus”? Must the contents of the document also be “false or misleading in a material particular”? 

A recent decision of the Full Court of the Federal Court – Arora v Minister for Immigration and Border Protection (2016) FCAFC 35 (11 March 2016) – has provided what we can take to be a definitive answer to these questions. 

The fact pattern in the Arora case followed that of so many other cases where PIC 4020 has been at issue. 

The applicant had originally arrived in Australia on a student visa. Upon completing his coursework, he applied for a skilled residence visa. The occupation that he “nominated” in his application was that of a pastry cook. The application was supported by a letter from the Trades Recognition Authority which certified that for migration purposes, the applicant was qualified as a pastry cook. 

There was, however, one major problem with the skills assessment that was issued by the TRA. As it turned out, a third party had issued a fake letter from the cake shop which untruthfully suggested that the applicant had acquired 900 hours of work experience at the shop. This third party was ultimately convicted of a criminal offence in relation to the practice of issuing false “work experience” letters. 

There was also a second problem with the skills assessment that was issued by the TRA. At the time that the skills assessment was issued, the TRA was not recognised as a “relevant assessing authority” within the meaning of the Migration Regulations. It was therefore conceded that the skills assessment was not a valid one. But the determinative issue in the case was whether PIC 4020 had been engaged as a proper basis for the refusal of the application. 

The argument that was made before the Full Court was that the alleged “bogus document” must have been not only “bogus”, but it must also have been false or misleading in a material particular. It was also argued that the “bogus” document must have been “material” to the outcome of the visa application. 

The first argument related to the wording of PIC 4020(1), which provides that there must not be any evidence that the applicant has given, or caused to be given: “a bogus document or information that is false or misleading in a material particular”. So the question before the Full Court was whether the phrase” “false or misleading in a material particular” applies to a “bogus document”, so that the document must not only be bogus, but it must also be false or misleading. 

The Full Court unanimously held that PIC 4020 is engaged simply when a bogus document is submitted. In the Court's view, it is not necessary that the bogus document also be false or misleading in a material particular.

The Court came to this conclusion based upon its finding that “bogus documents” and “information that is false and misleading” are dealt with by separate “regimes”. The term “bogus document” is defined by section 5 of the Migration Act to mean a document that: a) purports to have been, but was not, issued in respect of the person; b) is counterfeit or has been altered by a person who does not have authority to do so; or c) was obtained because of a false or misleading statement, whether or not made knowingly. Meanwhile, the meaning of the term “information that is false or misleading in a material particular” is addressed in PIC 4020(5) to mean: “information that is misleading at the time that it is given and is relevant to any criteria that the Minister may consider when making a decision on an application”. 

The Court took the view that the term “bogus document” as defined in section 5 of the Act and as used in PIC 4020 is concerned not with the “truth or otherwise” of the statements”, but rather with “the reliability of the documentation”. The Court reasoned that it would be “a most unworkable outcome if the Minister could not rely on the fact that a document was counterfeit but had to consider, in turn, whether the statements contained in it were, in any event, correct or otherwise relevant to the matters he had to consider”. 

The Court also took up the issue of whether the “false or misleading in a material particular” requirement that applies to “information” under PIC 4020 also applies to bogus documents. Adopting a ruling that had previously been made by the Federal Court in the case of Mudiyanselage v Minister for Immigration (2013) FCA 274, the Full Court held that the requirement of “materiality” that applies to “information” does not apply to “bogus documents”. 

The bottom line: submitting a bogus document to the Department, or relying on a bogus document to procure a skills assessment, will spell the “death knell” for a visa application. It matters not whether the bogus document is false, or whether it is material to the criteria that must be considered in determining the visa application.

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.