The Department of Home Affairs (Department) have various measures to ensure the integrity of its immigration program, and to deter those who have done the wrong thing for the purposes of trying to secure a visa.
This article addresses what happens when the Department believe that a person has provided a bogus document, or information that is false or misleading in a material particular in relation to a visa application, as well as the implications if a person has done so.
This is an important consideration not only for people who the Department suspect of providing bogus documents or false/misleading information and are being asked to comment, but also those who have had a visa refused on this basis and are affected by an exclusion period.
This criterion also may be engaged if you do not satisfy the Minister of your identity, though this is not discussed in further detail below.
These provisions, process, and relevant exclusion periods and exemptions are outlined in further detail below.
What is PIC 4020?
Practically, it is a criteria for most visa applications that the visa applicant must satisfy various Public Interest Criteria (PIC). Generally, this relates to satisfying the Department of Home Affairs (Department) that you satisfy certain identity, health, character, and security checks.
PIC 4020 sets out the criteria relating to fraud and “integrity” provisions.
Specifically, there must be no evidence that the visa applicant has given (or caused to be given), to the Minister, an officer, or the Tribunal (where a matter has been appealed), a relevant skills 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:
- the application for the visa; or
- a visa that the applicant held in the 12 months before the visa application was made.
The practical effect of this is that an applicant would not satisfy this criteria if it was uncovered that they provided relevant fraudulent documents or information in the visa they were applying for, or in a prior visa that they held (within the period specified above).
In circumstances where the Minister believes that an applicant has provided such documents/information, they would not satisfy PIC 4020, which means that they would be refused the visa application.
It also would render the applicant subject to an “exclusion period” (by virtue of having been refused a visa for failure to satisfy PIC 4020) which is outlined in further details below.
What is a “bogus document”?
A “bogus document” is defined as a document that the Minister reasonable suspects is a document that:
- purports to have been, but was not, issued in respect of the person; or
- 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.
Factual examples of these include a false:
- death certificate and false hospital discharge summary (see here);
- employment reference letter (see here);
- Statutory Declaration which purported to be from the Australian sponsor for a Partner visa application (see here);
- Adoption documents (see here);
- Skills assessment obtained through false or misleading statements (see here).
What is a “information that is false or misleading in a material particular”?
“Information that is false or misleading in a material particular” is defined as meaning information that is:
- False or misleading at the time it is given; and
- Relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that application.
Namely, the information might influence the conclusion that the decision maker might reach, and because it is false or misleading, may have contributed to a decision being made which might not have been made had the correct nature been known to the decision maker.
Common examples of this include where an applicant:
- does not declare a criminal conviction;
- declares their relationship status as “never married” when an applicant is in fact married or in a defacto relationship;
- states employment/education that does not exist, or is significantly different to its true nature.
Genuine mistakes would not be considered to be false or misleading information, for example typographical errors (putting a date of birth as 1989 instead of 1998). The Department would consider whether there has been a quality of “purposeful falsity”, or whether the applicant can explain an innocent mistake or error.
What is an exclusion period?
In this context, a visa exclusion period is a temporary period (specifically, 3 years) where a person cannot be granted a visa to Australia.
Specifically, in this context, if you are subject to a visa exclusion period and apply for a visa where PIC 4020 is a criteria (which applies to nearly all Australian visas), you would not be able to be granted the visa, except for in very limited circumstances which are outlined below.
How long is the visa exclusion period for?
The way the exclusion period is written is quite confusing. In short, if you were refused a visa because of a failure to satisfy PIC 4020 anytime from 3 years before you make the new visa application, up until the time the Minister is making a decision on the new application – you would not be able to satisfy PIC 4020 for the new application, and thus it would be refused.
For example:
- a person who was refused a visa application because they failed to satisfy 4020 (for example by providing a bogus document) on 1 July 2023 would need to ensure that any future visa application was made after 1 July 2026;
- a person who applies for a visa (1st visa), and during the process of that visa application process was refused a different visa application (2nd visa) because they failed to satisfy PIC 4020, would not satisfy PIC 4020 for the 1st
Is there an exemption to the visa exclusion period?
Other than waiting for the exclusion period outlined above to end, a person can still satisfy PIC 4020 and be granted the visa if the Minister is satisfied that there are either:
- compelling circumstances affect the interests of Australia; or
- compassionate or compelling circumstances that affect the interests of an Australian citizen, PR or eligible New Zealand citizen;
justifying the grant of the visa.
Relevant compelling/compassionate circumstances are not legally defined, but take their ordinary meaning.
Under Department policy, examples of compelling circumstances affecting the interests of Australia include where:
- Australia’s trade or business opportunities would be adversely affected were the person not granted the visa;
- Australia’s relationship with a foreign government would be damaged if the person is not granted the visa; or
- Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.
In considering whether there are compassionate or compelling circumstances affecting the interests of relevant Australians/eligible New Zealand citizen, factors may include where:
- a minor child who is an Australian citizen, permanent resident or eligible New Zealand citizen residing in Australia would be adversely affected by a decision not to waive.
- whether there are any significant health or welfare issues affecting an Australian citizen, Australian permanent resident or eligible New Zealand citizen including an absence of other carers and the nature of any such illness (and it’s permanence);
- the continuing separation of immediate family members, because of an inability of the Australian citizen, permanent resident or eligible New Zealand citizen to reside in the applicant’s country of residence or a third country (such as the applicant’s country of residence being a war zone).
Fairly generic claims like working and paying taxes in Australia, or simply being in a relationship with an Australian, may not of itself engage the above waiver provisions.
Is there any way around the exemptions?
Unfortunately, no. As the above “exemptions” are in the legislation, there are no further powers (or ability) for people who do not meet the above to be able to be granted a further visa where PIC 4020 is a criteria.
Conclusion
It’s important to ensure that visa applications are prepared as accurately as possible. This includes both in terms of the information that is provided, as well as the accompanying documentation. While individuals can be tempted to submit something as quickly as possible, it’s important to consider the significant consequences of mistakes and/or purposeful fraud.
Hannan Tew Lawyers have assisted a significant number of individuals who have been affected by PIC 4020, and given them advice on how to navigate such circumstances. We have also given strategic advice to ensure that individuals are not in such situations, and factor this consideration in for each client.
Please feel free to contact us by email at [email protected] or phone +61 3 9016 0484 if you have further comments or queries or would like some guidance.
