Public Interest Criteria – Pic4020



Public interest criteria- PIC4020 plays a crucial role when it comes to visa grants to applicants and their registered migration agents. Frauds within visa application and citizenship programs causes an excessive threat to the Department of Home Affairs and Australian community. Applicants who tend to provide misleading information, bogus documents or conceal information in relation to their identity, relationship status, education and employment where they considerably fails to satisfy this particular criteria. Applicants sometimes commit fraud to facilitate people smuggling, child abuse, human trafficking, and drug trafficking or terrorist operations in order to mislead the Department for their visa grant which is completely against best interests of Australian community.

In order to manage these frauds, appropriate practice and integrity checks are performed by case representatives or by the Minister of Department of Immigration and Border Protection.

The purpose of public interest criteria (PIC) 4020 is to encourage the increase the level of integrity while making a visa application by delivering a powerful disincentive to those applicants or their migration agents considering providing, or causing to be given, a modified information or fraudulent documents that is false or counterfeit in a material particular.

PIC 4020 is one of the public interest criteria in the Schedule 4 of Migration Regulations 1994 at the time of visa grant unless the requirement to satisfy this criteria has been waived off by the Minister under PIC4020(4). Schedule 4 defines the ban criteria on public interest criteria grounds. The failure to satisfy PIC4020 creates grounds for visa refusal but not for visa cancellations. This public interest criteria revolves around two important aspects:

  • Deception in relation to fraudulent information or bogus documents.
  • Failure to satisfy the identity.

PIC4020 is only applicable to current lodged visa applications or visa held in the last 12 months before lodging a current visa application or visa refusal on the basis of PIC4020 in the past 3 years by the primary applicant or member of family unit. Moreover, PIC4020 also applies to current visa applications submitted to the Department if visa refusal was received on 4020 identity provisions by the primary applicant or members of family unit in the past 10 years.

Section 65 of the Migration Act(Cth) have discretion to exercise the power to waive the requirements of any or all of the sub clauses of PIC4020- PIC 4020(1)(a) and/or 4020(1)(b) and PIC 4020(2) if satisfied of certain matters based on compelling circumstances that affects the interests of Australia; or compelling or compassionate circumstances that impact the interests of an Australian citizen, permanent resident of Australia or eligible New Zealand citizen justify the grant of a visa. Also, the waiver provisions only applies to current lodged visa applications not to the future application within ‘ban period’. However, the waiver provisions does not apply to the visa refusals received on the basis of failure to satisfy the identity in PIC 4020(2A) or (2B).

PIC 4020 does not impact the validity of visa application or Schedule 1 criteria (usually no amount refunded if held to apply). It is only applicable to Schedule 2 of Migration Regulations which means at the time of decision of current application. PIC 4020 applies to all skilled, business, student, and family visas as well as to selected temporary visas. There are some visa subclasses in Schedule 2 which are also subjected to ‘one fails all fails’ criteria if any of the applicants fails to satisfy the public interest criteria. In addition, ban or exclusion period applies to past refusals of current applicant including all the members of family unit on PIC 4020 grounds, whether the member of family unit is included or not as a secondary applicant in the current visa application.

The ‘integrity’ public interest criteria and their ban period is based on three components which are require to be met.

  • In order to have PIC4020 (1) in effect, the applicant must have provided the evidence in support of their application that has given or caused to be given to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth which is false or misleading in a material particular in relation to their current application or a visa that the applicant held in the period of 12 months before the application was made.
  • PIC 4020(2) states that the Minister is satisfied that the primary applicant and each member of family unit must not have been refused a visa because of a failure to satisfy PIC 4020(1) during a specified period.
    • Starts three years before the visa application was made.
    • The period ends when a decision on application is made to grant or refuse to grant the visa. 
  • Under 4020(2A), the Minister is satisfied that the applicant and each member of family unit must not have been refused a visa because of a failure to satisfy the identity. Please note that not all information provided to Home Affairs has to do with IDENTITY even though their name is on a document e.g. an IELTS test result or education qualifications.
    • Starts 10 years before the visa application was made.
    • The period ends when a decision on application is made to grant or refuse to grant the visa. 

Note: These sub clauses does not apply if at the time of application for which refusal was made, any family member was under 18 years of age. This ensures minors will not be penalized in future applications even if they have received the refusal. A simple bogus identity document may not lead to not meeting 4020 (2A). The applicant may subject to natural justice which means providing an opportunity to explain with relevant evidence why such information is provided to the Department.

There are certain subclasses in Schedule 2 which comes with ‘one fails all fails’ policy stating that if member of family unit fails to fulfil PIC4020, then no member in the family unit will be granted a visa. However, if this policy does not even mention in Schedule 2 then also other members of the family unit may subject to refusal due to following reasons:

  • Secondary applicant did not satisfy the primary criteria
  • Secondary applicant must receive an invitation to comment based on 4020 (2) or (2B), as the primary applicant is still a MOFU of the applicant.
  • Secondary applicant fails to satisfy 4020 (1) or (2A) in their own right.

Under some circumstances, applicants who receive an invitation to comment on the suspected genuineness of the document provided with the application and they might fails to satisfy PIC 4020(1), then they are advised to withdraw their current application by the migration agents in order to avoid the ban/exclusion period. In addition, applicant also request migration agents to request for further extensions of time to request for further information to the department. Even more, if any of the applicant have previously been associated with known or suspected fraudulent activity. In these cases, a very important question arises- Would the applicant will still be questioned by the Department of Home Affairs in future? Then the answer will be yes as policy may ‘trigger’ the Home Affairs to further investigate for ‘evidence’. Therefore, applicant may be requested to comment on the same by stating that allegations have been received that their claims are inconsistent made previously by their sponsor or by them in relation to their own migration history.

In conclusion, I can conclude that it is an applicant or their migration agent’s responsibility to always provide genuine documents and correct information to the department in relation to the application. And even if any error has been made while making an application, then there is a duty of applicant to notify the department of incorrect information or justify their claims with correct explanation and evidence if opportunity is provided by the department. This is because even if any bogus document is provided, applicant cannot ‘correct’ the giving of document and it may lead to fail of PIC4020 (1) criteria. Thus, after receiving the request to comment on the bogus document, if applicant provides the correct document and a genuine explanation then they may not be subjected to ban period but will still receive the refusal of visa. Additionally, there is a scenario if there is a fraud in identity documents and correct document is provided on request, then the applicant may not be subjected to 10 year ban but will be subjected to three year ban as bogus identity document was provided initially with the visa application.

Thankyou
Shilpi Walia

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