The purpose of this fact sheet is to provide a general overview of public interest criteria (PIC) 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 waiver of certain requirements under PIC 4020 may be applied.
What is PIC 4020 and when does it apply?
PIC 4020 is an integrity measure which is designed to prevent fraud within the visa migration programme. 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 3 or 10 years for future visa applications.
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.
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 to the entire family group. 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 because they did not meet PIC 4020. This may apply even if the current visa applicant was not a member of the family unit at the time of the refusal. Thus PIC 4020 can have far-reaching impacts, not only on the visa applicant, but also family members.
Immigration may waive non-grant periods imposed by PIC 4020 in specified circumstances. Such a waiver may only be applied in cases where a bogus document or false and misleading information has been deemed to be provided. No waiver is available if you fail to satisfy the Department of your identity.
PIC 4020 is a requirement which must be satisfied to qualify for grant of one of the following visas:
- skilled migration visa
- business visa
- temporary visa
- student visa
- family visa (which includes partner and parent visas)
What is a bogus document or false or misleading information?
The first aspect of PIC 4020 deals with the provision of a bogusdocument or false or misleading information which is materialin 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 reviewof 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).
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.
Immigration policy lists the following as examples of bogus documents for this purpose:
- 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)
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.
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 (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, you must satisfy Immigration as to your identity.
Failing to cooperate or provide adequate documentation and/or information to support your claim to your identity can result in the Department not being satisfied that you are the person who you claim to be.
What happens if the Department suspects that PIC 4020 has not be 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 PIC 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 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 3 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 3-year non-grant period?
Yes, provided that Immigration 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, Immigration 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 waiver provision.
What are compelling circumstances that affect the interests of Australia?
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.
Examples of factors outlined in policy which the Department may consider include where:
- A 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 waiver, the 3-year non-grant period will be waived, and the visa can proceed to be granted (provided 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 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 PIC 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 PIC 4020 on the basis of identity.
For up to date advice on PIC 4020 and how it applies to your personal situation, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.