What is Public Interest Criteria 4020 and How Serious Is It?

Your visa might be refused if you are subject to Public Interest Criteria 4020, commonly known as PIC 4020. Essentially this means providing bogus documents or information that is false or misleading to the Department.

 

As a visa Applicant, you are obliged to provide truthful information in your visa application.

 

What Factors Decide PIC 4020?

 

In most cases, visa applicant will be subject to PIC 4020 if the Department:

 

  • Cannot identify the visa applicant’s identity
  • The visa applicant(s) had provided bogus documents or false or misleading information in the visa application

 

What Visas Does Public Interest Criteria 4020 Apply To?

 

PIC 4020 applies to the following visa categories:

 

What Is the Public Interest Criterion 4020?

 

The following are the different types of PIC 4020 that a visa Applicant may be subject to. Subclause PIC 4020 (1) & (2) is in relation to providing bogus documents or false/misleading information in the visa application. Subclause PIC 4020 (2A) & (2B) is in relation to the Department not being able to identify the visa applicant’s identity.

 

Subclause PIC 4020 (1)

 

A visa Applicant will be subject to PIC 4020 (1) if they have given or caused to be given a bogus document/information that is false/misleading in relations to:

 

  1. the visa application; and
  2. the visa application that you had held in the period of 12 months before the application was made

For Example:

 

Our Immigration Lawyer, Kris Ahn (Accredited Specialist in Immigration Law), recently took on a Pro Bono case. The Department had raised PIC 4020 issue.

 

Background

 

The Applicant had lodged a Student visa in October 2018 and received a Natural Justice Letter in December 2018. The Department claimed that the Applicant had provided fraudulent information in his second year Working Holiday Visa (WHV). The WHV was valid between 2013-2014, hence, the Department raised PIC 4020 concerns.

 

How Did Kris Approach the PIC 4020 Accusation?

 

Kris prepared a submission by addressing that the delegate was right in stating that in order for the Student visa (subclass 500) to be granted, the Applicant must satisfy Public Interest Criteria 4020. 

 

However, regardless of whether fraudulent information was provided, the delegate had no power to exercise PIC 4020 and refuse the Student visa under PIC 4020. This is simply because:

 

  • This application is not for the second working holiday visa; or
  • The Applicant did not hold the second working holiday visa in the period of 12 months before the Student visa application was made

The Applicant had held a Student visa between October 2015 – October 2018. Hence, the Applicant had held a Student visa in the period of 12 months before this Student visa application was made.

 

Conclusion

 

For this reason, the delegate has made an incorrect accusation. The Applicant’s Student visa was granted shortly after.

 

As seen from the above example the Department can sometimes make mistakes on visa applications. We strongly advise you to seek professional advice from an Immigration Lawyer or Registered Migration Agent if you are faced with visa issues.

 

Subclause PIC 4020 (2)

 

The visa Applicant and the Applicant’s member of the family unit (MOFU) must have not been refused a visa because of failure to satisfy PIC 4020(1) during:

 

  • a period starting 3 years before the visa application was made (i.e. 3 years exclusion period or 3 years ban); and
  • ending when a decision is made to grant or refuse the visa.

IMPORTANT: A MOFU is a person who is the applicant’s MOFU at the time the application is being considered. MOFU will be considered regardless of whether they are included in the application.

 

For example: If Sally applies for a visa on 1 January 2019, the “3 years period” will be considered from 1 January 2016. And it will end when the Department makes a decision to grant or refuse Sally’s application.

 

Subclause PIC 4020 (2A)

 

Visa applicants will be subject to PIC 4020 (2A) if the Minister cannot confirm their identity. Essentially, providing false identity will result in a refusal of your visa application.

 

Subclause PIC 4020 (2B)

 

The visa Applicant and the Applicant’s member of the family unit (MOFU) must have not been refused a visa because of failure to satisfy PIC 4020(2A) during:

 

  • the period starting 10 years BEFORE the application was made (i.e. 10 years exclusion period or 10 years ban); and
  • ending when a decision is made to grant or refuse the application;

IMPORTANT: A MOFU is a person who is the applicant’s MOFU at the time the application is being considered. MOFU will be considered regardless of whether they are included in the application.

 

 

For exampleIf Sally applies for a visa on 1 January 2019, the “10 years period” will be considered from 1 January 2009. And it will end when the Department makes a decision to grant or refuse Sally’s application

 

Clause PIC 4020 (2AA) and (2BA)

 

PIC 4020 (2AA) and (2BA) involves Applicants who are under the age of 18, i.e. a minor.

 

The effect is that Applicants who are considered to be a minor at the time their visa was refused, will not be subject to the 3 years or 10 years requirements of PIC 4020 (2) and PIC 4020 (2B).

 

IMPORTANT: this provision does not prevent a minor from being refused a visa for failing to satisfy the PIC 4020 criteria – they still can. However, they are simply NOT subject to the 3 years or 10 years ban in relation to their future visa application.

 

Can PIC 4020 Be Waived?

 

Not all PIC 4020 provisions can be waived.

 

If a visa Applicant is subject to PIC 4020 (1) and PIC 4020 (2), they may be able to waive this by satisfying that:

 

  • there are compelling circumstances that affect the interests of Australia; or
  • there are compassionate or compelling circumstances that affect the interest if an Australia citizen, an Australian permanent resident or an eligible New Zealand citizen.

 

IMPORTANT: Visa Applicants who are subject to PIC 4020 (2A) and PIC 4020 (2B) that is relevant to identity will not be able to waive PIC 4020.

 

A very interesting case law which was recently published in June 2018 shows an example where PIC 4020 was successfully waived. The Applicant took the case to the Federal Circuit Court after the Tribunal refused the appeal. The decision in Kaur & Ors v Minister for Immigration & Anor (2018) FCCA 1614 (25 June 2018) was decided by Judge Baird.

 

What Kind of Information Triggers PIC 4020?

 

There are various reasons why the Department would raise PIC 4020 issues, for example:

 

  • The department requests the applicant to comment on the suspected genuineness of the documents provided, but instead, the Applicant withdraws the application
  • The Applicant continues to request for an extension of time without providing acceptable reason after being requested for further information
  • The Applicant’s claims are inconsistent with the information provided in their previous visa application(s)
  • The Applicant has an Immigration history that suggests they had provided false or misleading information and/or bogus documents in relation to previous visa applications

 

PIC 4020 issue is extremely serious and should be dealt with promptly. The Department can make mistakes and the AAT can incorrectly word their decision which can potentially reveal legal errors. If you are faced with PIC 4020 we advise seeking assistance from a professional who knows the law and knows how to interpret the law, as soon as possible.

 

How Can Crux Migration Help

 

As an Accredited Specialist in Immigration Law, Kris is able to represent you at the Tribunal and/or at court. Kris can help guide you through the entire application process and help you prepare all documents involved, ensuring that documents meet requirements before we lodge your application. We can represent you from start and until a decision is made on your application.

You can book a consultation with us so that our immigration lawyers can assess your eligibility and tailor your application in accordance with your circumstances.

 

CONTACT US

 


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