This week marks ten years of since I entered the immigration profession and naturally many things have changed since 2009. Introduction of immi account, abolition of subclass 457 visa, introduction of several new visa subclasses to cater for the ever-changing landscape we know as Australian Immigration. Considering this anniversary, it got me wondering, if I had to pick just one major change in immigration landscape, what that would be, my answer, Department's approach to PIC 4020.
What is PIC 4020
In summary, 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
When faced with PIC 4020 issue, it should be treated as an extremely serious matter given the ramifications involved in the event where a visa application is refused as the outcome. Even experienced practitioners need to approach the matter with great caution.
Over the years the Department of Immigration refined PIC4020 criteria which at one stage included a ten-year ban. Further the number of refusals based on PIC 4020 issue is on the rise as evidenced by the statistics published on the AAT’s website, including this useful link: http://www.aat.gov.au/AAT/media/AAT/Files/MRD%20documents/Factsheets/FS09-Public-Interest-Criterion-4020.pdf
In the ten years of practice, I had the unfortunate task of dealing with a number of PIC 4020 issues and have seen the unforgiving approach to these matters by the Department. If I had to summarise PIC4020 in one sentence; no PIC 4020 issue is ever the same, that is, you simply cannot create a template to address this criterion.
Dealing with PIC 4020:
Whilst all PIC 4020 issues can lead to the same outcome (i.e. refusal), not all PIC 4020 issues are the same.
Take for example a bogus document, under Policy, Bogus Document is covered by the, s5(1) of the Act as:
In relation to a person, means a document that the Minister reasonably suspects is a document that:
purports to have been, but was not, issued in respect of the person; or
is counterfeit or has been altered by a person who does not have authority to do so; or
was obtained because of a false or misleading statement, whether or not made knowingly.
Where a client has provided a bogus document, there is very little scope to save the application other than to withdraw the application from processing. Whilst withdrawing the application will not trigger a three year ban, where the applicant chooses to respond within the prescribed period by withdrawing their application before it is finalised, appropriate case notes are to be recorded on the client record before continuing the application to withdrawal. This will naturally result in scrutiny of any subsequent visa application made by the applicant.
On the opposite side of the spectrum, providing false or misleading information may or may not see your application sink. False or misleading information in a material particular is defined in Policy as:
information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision
The first step in dealing with this type of situation is to identify whether the information provided to immigration is false or misleading. For example, claiming work false work experience and relying on this work experience to obtain a skilled visa may see your application in deep waters. However, misunderstanding the question on the visa application form and providing correct information post lodgement may not necessarily be treated as a PIC 4020 issue.
Solving PIC 4020 issues:
There is no magic formula to resolving a PIC 4020 issue. The circumstances of each case are different. The first step is to decide whether you will be proceeding with the application or whether withdrawing the application from processing is a better option. If you decide the proceed, there are a couple of useful tools which you may wish to utilise when tackling a PIC 4020 issue.
1. Migration Act permits notification of incorrect answers
Under the Migration Act, an applicant can provide additional information or correct information provided on the original application up until a such time that a decision is made on the application. You may therefore use this as the basis of your submission
2. Address the issue as soon as possible
Whether you received a request for further information which identifies false or misleading information, or you realise that incorrect information has been provided, it is important to correct the information as soon as possible. Immi account allows you to file notification of incorrect answers.
3. Provide a statement from the visa applicant (where applicable)
Where a genuine mistake is made, it is best to provide a statement (statutory declaration if possible) from the applicant stating the reasons for providing incorrect information and reasons for not providing correct information in the first instance. It will be up to the case officer to accept or reject the submission. This should be done in addition to step 2 (see above).
4. Use your judgement
The most difficult part of PIC 4020 is deciding whether the risk of proceeding with the application caught by PIC 4020 is worth the result. If the application is refused, an applicant will be banned for three years from making further applications unless the bar is lifted.
Post refusal process:
The refusal letter should indicate if the applicant is currently subject to a three year non-grant period under PIC 4020(2). If an applicant decides to apply for another visa to Australia and where an applicant is subject to a three year non-grant period, Home Affairs should send an “Invitation to comment” letter, to give the applicant the opportunity to comment and to address whether they believe any grounds for waiver apply.
Although an invitation to comment is a must, there are no grounds to revisit the original refusal decision when considering the current application being considered under PIC 4020(2).
Home Affairs will assess as to whether the grounds for exercising the waiver exists - that is, the delegate needs to decide whether they are 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 summary, PIC 4020 is no easy fix and even experienced agents will often face difficulties in deciding how to proceed. The safe choice is of course to withdraw the application. Alternatively, if you decide to proceed, you will need a strategic approach and well thought out plan to tackle the issue at hand.