Honesty Pays

Public Interest Criterion 4020

Public Interest Criterion 4020 (‘PIC 4020’) is intended to enhance the integrity of the Australian migration process by deterring identity fraud and discouraging the submission of bogus documents and false or misleading information with respect to visa applications.

Pursuant to PIC 4020, visa applicants are responsible for the veracity of the information they provide to the Department of Home Affairs and the authenticity of the documentation submitted in support of their visa application.

PIC 4020 requires that there is no evidence of the applicant giving, or causing to be given, to the Minister, an officer, the Tribunal during a review, a relevant assessing authority, or a 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 the applicant held in the 12 month period before the application was made (clause 4020(1) of Schedule 4 to the Migration Regulations 1994).

Applicants’ requirements

The applicant and each member of their family unit must not have been refused a visa for failing to comply with clause 4020(1) during the period starting 3 years before the visa application was made and ending when the Department of Home Affairs makes a decision to grant or refuse to grant the visa (clause 4020(2)), unless the applicant was under 18 years of age at the time when the application for the refused visa was made (clause 4020(2AA)).

The applicant is further required to satisfy the Department of Home Affairs as to their identity (clause 4020(2A)), and the applicant and any member of the applicant’s 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 the Department of Home Affairs makes a decision to grant or refuse to grant the visa (clause 4020(2B)).

The requirements of clauses 4020(1) and (2) apply irrespective of whether the Department of Home Affairs become aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant (clause 4020(3)).

Accordingly, the Department of Home Affairs 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 time periods.

However, the requirements of clauses 4020(1) and (2) with regard to bogus documents and false or misleading information may be waived in certain situations if 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 an eligible New Zealand citizen, justify the granting of the visa (clause 4020(4)).

Whereas the provisions of PIC 4020 are directed at information and documents which are purposely untrue, visa applicants are ultimately responsible for the truthfulness and genuineness of the information and documents they submit in support of their application and the criterion applies regardless of whether the applicant provides the document lacking in veracity knowingly or unwittingly (Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42).

Precedents

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 Department 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 [2016] FCA 130).

Accuracy and transparency with your application material, including documents submitted with a visa application or skills assessment, and the ethical practice of the migration agent you appoint will thus be of critical importance.

Please contact Tamas Immigration for more information about the requirements of Public Interest Criterion 4020 or assistance with your Australian migration matter.

By |2020-01-18T06:41:00+00:00December 9th, 2019|Governments|Comments Off on Honesty Pays