When thinking about applying for a visa, requirements around fraud would probably not come to mind for most people. It is more usual for visa applicants to be more concerned about the more commonly known requirements, such as work experience and qualifications for a skilled visa, for example. Or relationship requirements for a partner visa. It is important to be aware that for certain visa subclasses, a fraud requirement must also be satisfied for visa grant.
So what do we mean when we refer to fraud within the context of a visa application? Here we are looking at a situation where a visa applicant provides bogus documents and/or false or misleading information, or conceals information as part of their application.
The Department of Home Affairs (the Department) has put in place mitigation strategies to manage these types of risks. According to immigration policy, the Department seeks to achieve this by imposing Public Interest Criterion (PIC) 4020 in the Migration Regulations, which “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.” PIC 4020 also requires applicants to satisfy the Department as to their identity.
In this article, we provide a general overview of public interest criterion 4020, including what is required to meet PIC 4020, when it may apply and the consequences that may result should you or a member of your family unit fail to satisfy PIC 4020. We also discuss circumstances where a PIC 4020 waiver of certain requirements under PIC 4020 may be applied, resulting in the visa ultimately being granted. We illustrate some PIC 4020 waiver case examples as referred to in immigration policy.
Before we commence our discussion, we wish to point out that some people may refer to the PIC 4020 visa condition. Characterising it as PIC 4020 visa condition is not correct as it is not, in fact, a visa condition. A visa condition essentially stipulates what you can and cannot do as the holder of a specific visa subclass. For example, visa condition 8101 states that ‘the holder must not engage in work in Australia.’
PIC 4020, on the other hand, is a visa grant criterion for certain visas. This means that you must satisfy public interest criterion 4020 for the visa to be granted. Please keep this in mind if you see references to 4020 visa condition elsewhere as you conduct your research.
What Is PIC 4020 And When Does It Apply?
As noted in the introduction, PIC 4020 is an integrity measure which is designed to prevent fraud within the visa migration program. It achieves this by imposing severe consequences upon visa applicants who are found not to have complied with these requirements, with a refusal of the visa application in the first instance, and further non-grant periods of either three or 10 years for future visa applications.
In certain circumstances, the requirement to satisfy PIC 4020 may be waived by the Department and consequently, the visa may be granted.
Failing to satisfy PIC 4020 Migration Regulations is grounds for a visa refusal, but not a visa cancellation.
PIC 4020 deals with the following two elements in relation to a visa application:
- the provision of a bogus document or false or misleading information; and
- satisfying the Department of your identity.
How About Members Of Your Family Unit?
These requirements also extend to members of your family unit. Dependent visa applicants may need to meet PIC 4020 to qualify for visa grant. A failure to satisfy PIC 4020 by any one family member can impact on visa grant for the entire family group. This is why PIC 4020 is commonly referred to as a ‘one fails, all fail’ criterion, meaning that if one member of the family unit fails to satisfy PIC 4020 Migration Regulations, then no-one in that family unit can be granted the visa.
Moreover, non-grant periods may apply to prevent visa grant to an individual on the basis that a member of their family unit had a visa refused previously because they did not meet PIC 4020 Migration Regulations. This may apply even if the current visa applicant was not a member of the family unit at the time of the refusal. There are time limits for this to apply, however.
Importantly, all references to members of the family unit in this regard refers to members of the family unit of the applicant at the time the application is being considered. This includes members of the applicant’s family unit regardless of whether or not they are included in the application being considered.
Bogus Document Or False Or Misleading Information
And so public interest criterion 4020 enables refusal of a visa application where the applicant or a member of their family unit was previously refused a visa as a result of having provided bogus documents or false or misleading information; and that refusal occurred between the three years before the current application was made and the time of decision on the current application. Note this does not apply if at the time the application for the refused visa was made, the applicant was under 18 years of age.
The identity criterion within PIC 4020 requires the applicant to satisfy the Department that ‘they are who they say they are.’
PIC 4020 enables refusal of a visa application where the applicant or a member of their family unit was previously refused a visa as a result of having failed to satisfy the Department as to their identity; and that refusal occurred between the 10 years before the current application was made and the time of decision on the current application. Note this does not apply if at the time the application for the refused visa was made, the applicant was under 18 years of age.
Thus public interest criterion 4020 can have far-reaching impacts, not only for the visa applicant, but also on family members.
And The PIC 4020 Waiver Provisions?
Immigration may waive non-grant periods imposed by PIC 4020 in specified circumstances. Such a PIC 4020 waiver may only be applied in cases where a bogus document or false or misleading information has been deemed to have been provided. If the applicant or a member of their family has had a previous visa refused in the last three years due to failing to satisfy PIC 4020 Migration Regulations based on providing a bogus document or false or misleading information, this too can be waived.
Importantly, the PIC 4020 waiver is not available if you fail to satisfy the Department of your identity.
We discuss the PIC 4020 waiver provisions in more detail, including some PIC 4020 waiver case examples as referred to in policy, later in this article.
When Does PIC 4020 Apply?
PIC 4020 is a requirement which must be satisfied to qualify for grant of one of the following visas:
PIC 4020 also applies to certain temporary visas.
Public Interest Criterion 4020 … The Key Points
Let us now delve into the detail on what exactly is meant by the elements covered by PIC 4020, namely, what is the definition of a bogus document, false or misleading information and identity.
What Is A Bogus Document Or False Or Misleading Information?
The first aspect of PIC 4020 deals with the provision of a bogus document or false or misleading information which is material in relation to your visa application, or a visa that you held in the period of 12 months before making the application. To meet this part of the requirement, there must be no evidence before the Department that you have either given, or caused to be given, such documents and/or information to:
- the Minister for Immigration
- an officer of the Department
- The Administrative Appeals Tribunal (AAT) (if you have applied for a review of your refusal decision)
- a relevant assessing body (if you have applied for a skills assessment, which is required for certain skilled visas)
- a Medical Officer of the Commonwealth (in relation to meeting the health criteria for your visa application.)
The reference to ‘given or caused to be given’ means that you can be caught by PIC 4020 where either you as the visa applicant, or a third party on your behalf, has provided documents and/or information in relation to your visa application. The Department does not need to determine that you were knowingly or directly involved; all that is required is that you were aware of the visa application (even if ignorant of its specific contents). Indeed, according to immigration policy, ‘it is not necessary to show knowing complicity by an applicant in the provision of a document and/or information.’
It is your responsibility as the visa applicant to ensure that all information and documents lodged with the Department are correct and accurate. This applies even if a migration agent or immigration lawyer, or other third party, is acting on your behalf.
‘Bogus document’ is a defined term in the migration provisions and refers to a document which the Minister reasonably suspects:
- purports to have been, but was not, issued in respect of the person;
- 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.
How does a bogus document come into play in regards a visa application? Well, where the visa applicant includes a reference in their visa application to another document to which the Department will access (either directly or through a third party) in order to decide whether the applicant satisfies the criteria for the grant of the visa applied for.
Under immigration policy, there is no provision for an applicant to “correct” the giving of a bogus document. And so where there is evidence that the applicant has given, or caused to be given, a bogus document in relation to the application for the visa, the applicant will fail to satisfy public interest criterion 4020.
Compare the situation with false and misleading information, which needs to be false or misleading in a material particular to be caught by PIC 4020. Whereas a bogus document does not need to be relevant to any of the criteria being considered when making a decision on the application.
The same applies where the applicant has given, or caused to be given, a bogus document in relation to a visa held, in the period of 12 months before the visa application was made. Again, the bogus document does not need to be bogus in a ‘material particular’.
Immigration policy lists the following as examples of bogus documents for the purposes of PIC 4020 Migration Regulations:
- Documents which purport to have been, but were not, issued in respect of the applicant (e.g. a document belonging to another person that is presented to the Department by the visa applicant as their own);
- Documents which are counterfeit – these are documents that are created to resemble genuine documents (e.g. identity documents such as a passport or birth certificate, or work experience documents like an employment reference);
- Documents which have been altered by a person who is not authorised to do so (e.g. altering the dates of employment in a work reference or changing a photo in an identity document);
- Documents obtained because of a false or misleading statement (e.g. an English test result which was achieved by an individual other than the visa applicant, or a skills assessment issued based on false claims).
As noted above, a bogus document does not need to be relevant to any of the visa grant criteria being considered by the Department when making its decision on your visa application, that is, it does not need to be bogus in a material particular (as is the case for false or misleading information).
False Or Misleading Information In A Material Particular
This is also a defined term, and refers to information which is:
- false or misleading at the time it is given; and
- which is relevant to any of the criteria considered when making a decision on an application, whether or not the decision is made because of that information.
‘Material particular’ means information that is relevant to any of the criteria that the Department may consider when deciding on your application, irrespective of whether the decision is made because of that information. Therefore, PIC 4020 would cover information which might influence or contribute to the decision, and which might not have been made had the Department known the true position.
According to policy, where an applicant gives, or causes to be given, ‘information that is false or misleading in a material particular, in order to refuse the visa on the grounds of PIC 4020, it is necessary that the information or document have the quality of “purposeful falsity,” whether or not the visa applicant can be shown to have personal knowledge of that fact.’ Further, policy states that in circumstances where an applicant can explain an innocent mistake, and the Department believes the applicant’s claims, then the Department may determine that there is no ‘purposeful falsity,’ and that the applicant meets PIC 4020. In such a case, the visa could be granted.
Examples of ‘false or misleading’ referred to in policy include:
- False or inaccurate statements or information in a document, application, or declaration;
- Omitting facts that are false or misleading in a material particular(e.g. failing to notify the Department of important information such as a sponsor being deceased after lodgement of a partner visa application);
- Providing false statements or information when requested by the Department to clarify information, or omitting relevant information such that facts are misrepresented);
- False or misleading information about a secondary and/or non-migrating dependant’s relationship to the primary applicant;
- A false or misleading employment reference in support of an applicant’s work experience claims.
A typographical error where an incorrect street address or birth date for a child is included in an application would likely not be false or misleading in a material particular under PIC 4020 (as noted in policy but be aware that this is not binding on the Department).
To meet the second aspect of PIC 4020 Migration Regulations, you must satisfy Immigration as to your identity.
Failing to cooperate or provide adequate documentation and/or information to support your claim as to your identity can result in the Department not being satisfied that you are the person whom you claim to be.
According to policy, where it is relevant and necessary, and in the absence of other evidence, the Department can use DNA testing in order to make a decision about an applicant’s identity and where the migration outcome is based on a claimed familial relationship. Because the migration provisions do not make any reference to DNA testing, it is therefore voluntary. The result of a DNA test is just another form of evidence that the Department can request from an applicant in order to decide whether to grant or refuse a visa.
What Happens If The Department Suspects That PIC 4020 Has Not Been Satisfied?
Immigration will conduct further investigations to establish whether to refuse your visa application on the basis of failing to meet PIC 4020. As part of this process, you will be notified in writing, and will have the opportunity to comment on this matter (which you must also do in writing). This is called a ‘natural justice’ letter.
If the Department cannot confirm your identity for the purposes of public interest criterion 4020, it may also request that you undergo a DNA test.
What Happens If You Fail To Satisfy PIC 4020 On The Basis Of A Bogus Document Or False Or Misleading Information?
If the Department determines that you do not meet PIC 4020 Migration Regulations on this basis, it will refuse to grant your visa application.
As a result of failing to satisfy PIC 4020, you will also be unable to be granted a further visa for a period of three years from the date of refusal (there is an exception to this criterion if the refusal due to public interest criterion 4020 was made when you were under the age of 18).
Can The Department Apply A PIC 4020 Waiver Of The Three Year Non-Grant Period?
Yes, a PIC 4020 waiver may be applied provided that the Department is satisfied that either of the following circumstances exist that would justify granting the visa:
- 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.
In this case, the Department will issue an ‘Invitation to comment’ letter, to provide you with the opportunity to comment and address whether you believe that any grounds for waiver apply.
The terms ‘compassionate’ and ‘compelling’ are not defined in the migration provisions. Therefore, their ordinary meaning applies. Each individual case will be considered on its own merits to determine whether compelling or compassionate circumstances exist. Be aware that ‘compelling or compassionate circumstances’ should already be in existence (i.e. not something which may occur in the future).
In making its assessment in this regard, the Department will only consider the interests of Australia, or of an Australian citizen, permanent resident or an eligible New Zealand citizen. Your interests as the applicant are not relevant when considering the PIC 4020 waiver provision.
What Are Compelling Circumstances That Affect The Interests Of Australia?
PIC 4020 waiver case examples provided in policy include circumstances where:
- Australia’s trade or business opportunities would be adversely affected were the visa not be granted;
- Australia’s relationship with a foreign government would be damaged if the visa is not granted;
- Australia would miss out on a significant benefit that the visa applicant could contribute to business, economic, cultural or other development (such as possessing a special skill in high demand in Australia) if the visa were not granted
Factors such as working and paying taxes, paying fees to an education provider or spending money in Australia would not be deemed to be compelling circumstances that affect the interests of Australia for this purpose.
What Are Compassionate Or Compelling Circumstances That Affect The Interests Of An Australian Citizen, Permanent Resident Or Eligible New Zealand Citizen?
Compassionate or compelling circumstances must directly affect an Australian or eligible New Zealand citizen.
To apply a PIC 4020 waiver, ‘the circumstances must have a compelling or compassionate element particular to that individual case’ according to policy.
A PIC 4020 waiver case example of a partner visa is referred to in policy, which states that ‘the nature and extent of the bonds that exist between partners in a genuine relationship and the consequences of the partners separating are likely to differ from one relationship to another and, as such, should be assessed on a case by case basis in order to determine whether ‘compelling or compassionate’ circumstances exist.’
In a further PIC 4020 waiver case example, an applicant stating that they would like to have a baby with their sponsor in the future and therefore should not be separated for a three-year non-grant period would not generally be considered a ‘compassionate’ or ‘compelling circumstance.’
Under policy, PIC 4020 waiver case examples of factors which the Department may consider include where:
- A minor child who is an Australian citizen, permanent resident or eligible New Zealand citizen would be adversely affected by a decision not to apply the waiver;
- There are significant health or welfare issues affecting an Australian or eligible New Zealand citizen;
- a decision not to waive would result in the continuing separation of immediate family members, due to the Australian or eligible New Zealand citizen being unable to live in the applicant’s country of residence or a third country.
If the Department decides to apply a PIC 4020 waiver, the three year non-grant period will be waived, and the visa can proceed to be granted (provided that you have met all other visa grant requirements). Be aware that the waiver applies only to the visa application being considered. If you then subsequently apply for another visa within the non-grant period which has PIC 4020 Migration Regulations as part of visa grant criteria, you will again need to prove that PIC 4020 has been met to qualify for visa grant.
If the Department decides not to apply the waiver, the non-grant period will stand and consequently, your visa application will be refused. Depending on your individual circumstances, you may be able to apply to the AAT to have the decision reviewed.
What Happens If You Fail To Satisfy PIC 4020 On The Basis Of Failing To Satisfy The Department As To Your Identity?
If the Department determines that you do not meet public interest criterion 4020, it will refuse to grant your visa application.
As a result of failing to meet PIC 4020 due to identity reasons, you will also be unable to be granted a further visa for a period of 10 years from the date of refusal (there is an exception to this criterion if the refusal due to PIC 4020 was made when you were under the age of 18).
Can The Department Apply A Waiver Of The 10-Year Non-Grant Period?
No, a waiver is not available if you have failed to satisfy public interest criterion 4020 on the basis of identity.
Before We Go …
PAX Migration Australia Is Here To Help
Reading through our article, you may be thinking ‘wow, this is complicated.’ And you’d be right! Addressing PIC 4020 is complex and definitely requires an experts eye. Our team of professionals are here to help with your visa needs, including if you are affected by public interest criterion 4020. Whether that be if you have received a PIC 4020 natural justice letter from the Department, or if you are seeking a review of a PIC 4020 refusal decision at the AAT, we are on hand, ready to help and provide advice on how PIC 4020 applies to your personal circumstances.
To learn more about why you should consider speaking with PAX Migration Australia, reviews and testimonials from our clients about what they have to say about us, and why seeking professional assistance and advice from a migration agent can be beneficial in achieving a positive outcome on your migration matter, please see the following articles:
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Australia’s migration laws are complex, and each case is different. We recommend that you seek professional advice if you are interested in applying for a visa to Australia, including if you are subject to PIC 4020 and what that means for you, as being fully informed will give you the best chance of achieving a successful outcome on your case. A migration professional can help you to do this. There are also several terms that are defined in the migration provisions. It is vital to have a good understanding of these terms and how they apply in practice. Detailed advice about these is beyond the scope of this article and we would therefore recommend that you seek further information in this regard.
For up to date advice on how PIC 4020 affects you, contact PAX Migration Australia, a leading immigration service providing advice on a range of visas. Contact us for a no obligation discussion on how we may be able to assist you in your migration goals in Australia.