Honesty is the Best Policy!
Public Interest Criterion 4020
Public Interest Criterion 4020 (‘PIC 4020’) makes visa applicants responsible for the veracity of the information and documents supplied to support their applications. The provision is meant to boost the integrity of the Australian migration process by deterring identity fraud and submission of false or misleading information, or bogus documents, in relation to visa applications.
PIC 4020 requires that there is no evidence of the applicant giving, or causing to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to a visa application or a visa that they held in the 12 months before the application was made (cl. 4020(1)).
The applicant and each member of their family unit must not have been refused a visa for non-compliance with cl. 4020(1) during a period starting 3 years before the visa application was made and ending when the Department of Immigration and Border Protection (‘DIBP’) makes a decision to grant or refuse to grant the visa (cl. 4020(2)), unless the applicant was under 18 at the time the application for the refused visa was made (cl. 4020(2AA)).
The applicant is further required to satisfy the DIBP as to their identity (cl. 4020(2A)), and the applicant and any member of their family unit must not be refused a visa for not meeting this requirement during the period starting 10 years before the visa application is made and ending when DIBP makes a decision to grant or refuse to grant the visa (cl. 4020(2B)).
The requirements of clauses 4020(1) and (2) apply irrespective of whether the DIBP became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant (cl. 4020(3)). Accordingly, the DIBP can consider information obtained from third parties when determining whether PIC 4020 is satisfied, and a failure to satisfy PIC 4020 can lead to the visa applicant and any secondary applicants being deemed non-compliant with PIC 4020 in future visa applications that are made within the specified periods.
However, the requirements in clauses 4020(1) and (2) in relation to bogus documents and false or misleading information may be waived in certain situations if there are compelling circumstances that affect the interests of Australia, or if compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident or eligible New Zealand citizen justify the granting of the visa (cl. 4020(4)).
Whilst PIC 4020 is directed to information or documents which are purposely untrue, visa applicants are ultimately responsible for the veracity of the information and documents they supply in support of their application and the criterion applies irrespective of whether the applicant provides the document knowingly or unwittingly (Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42).
In Zhang v Minister for Immigration and Border Protection [2016] FCA 921, Griffiths J reasoned that it is not material to the operation of PIC 4020 whether the visa applicant knows about fraudulent conduct on the part of an agent. It would follow that an applicant who is unaware that a bogus document is submitted to the DIBP on their behalf may nevertheless fall foul of PIC 4020 and consequently have their visa application refused.
Similarly, the decision of Cameron J in Kaur & Anor v Minister for Immigration & Anor (2016) FCCA 736 reminds us that even where the client is a victim of fraud on the part of the migration agent, that will not relieve the client of responsibility for the truthfulness of the material supplied in support of their application and indeed will not have the effect of making the application invalid.
Where a positive skills assessment is revoked due to a fraudulent work reference, getting a second positive skills assessment based on accurate and true information would not amount to compelling circumstances to rescue the application from the operation of PIC 4020 (Minister for Immigration and Border Protection v Sandhu FCA 130).
In some circumstances, however, compelling or compassionate circumstances may justify waiving PIC 4020 on the facts of the case, such as occurred in Gjecaj v Minister for Immigration & Anor (2016) FCCA 2812.
Transparency with your application material, and ethical practice of the migration agent you appoint will thus be of critical importance.
Please contact SCA Connect for more information about PIC 4020 or assistance with your particular migration matter.
