(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, 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) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(e to satisfy the criteria in subclause (1).
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) 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 information.
PIC 4020 commenced on12 April 2011
Public interest criterion (PIC) 4020, commenced on 2 April 2011 and enables refusal of a visa if the applicant provides a bogus document or information that is false or misleading. Applicants who are refused a visa because they do not satisfy PIC 4020 may be excluded for a period of three years from applying for another visa to which PIC 4020 applies.
Both the decision to refuse (under PIC 4020) to grant a visa and the three year exclusion period on further applications are subject to the s65 delegate’s discretion, after the delegate has considered compelling circumstances that affect the interests of Australia, or compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.
The implementation of PIC 4020 was initially applied to GSM visas, but has been subsequently expanded to apply to all Skilled Migration, visas and to all Business skills student visas and to various temporary work visas.
When does PIC 4020 apply – transitional provisions
PIC 4020 was inserted into the Regulations with effect from 2 April 2011. For the visas to which it was applied at that time, the PIC applied to:
- applications made on or after 2 April 2011 and
- applications made before 2 April 2011 that were not finally determined as of 2 April 2011.
PIC 4020 has applied to student visa applications made on or after 5 November 2011.
It has applied to Business Skills visa applications:
- made on or after 5 November 2011 or
- made before 5 November 2011 but that were not finally determined as of 5 November 2011.
If an applicant provides incorrect information in an application, the s65 delegate needs to decide, as part of the PIC 4020 assessment, whether this information is false or misleading information. Scenarios where incorrect information may be provided include, but are not limited to:
- variances in birth dates provided on the application form and birth certificate
- information about a secondary and/or non-migrating dependant’s relationship to the primary applicant
- an employment reference in support of an applicant’s work experience claims.
If incorrect information has been given, the s65 delegate will need to determine:
- whether the information is also ‘false or misleading’ in a material particular – that is, false or misleading at the time it is given and
- whether the information is relevant to any of the criteria the delegate may consider when making a decision on the current visa application, whether or not the visa decision is based on that information (PIC 4020(5) refers).
PIC 4020(4) gives s65 delegates the discretion to waive the requirements of any or all of if there are:
- compelling circumstances that affect the interests of Australia or
- compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen
- that justify the granting of the visa.
Whether there are compelling or compassionate circumstances will depend on the circumstances of the individual case.
Submission of a bogus document(s) or incorrect information to Dept. of Immigration and Citizenship is a serious matter. It has been observed that many overseas students often come across situation(s) where their visas have been refused by Dept. of Immigration and Citizenship.
Waiver provision does available but onus lies on visa applicant how far visa applicant defend doubts raised by Dept. of Immigration and Citizenship. It will be advisable for visa applicant to seek advice from an experienced registered migration agent to know options in such situations.
Our processing fees vary case to case and are subject to the complexity of the case and amount of work involved. We also offer initial consultations for those who want to better understand the visa process and their options, after which we will advise of our charges if you wish to proceed with us. Consultations cost from A$100-$200 or more depending on the complexity of the case.
How BMS Global Can Help You
- We at BMS GLOBAL have 16 years of actual practical hands on experience in processing visa applications at all stages of application and we have successfully deal with many applications of various backgrounds with respect to differing occupations and nationalities.
- We are aware of complexities and changing nature of Immigration Laws so that we can prepare you and your employer well in advance on how to face a tough situation if one arises or if something additional is demanded by Dept of Immigration.
- We can provide you frank and candid opinions with expert’s advice if needed about your visa application well in advance
- We can assist you to apply for waiver of condition 4020, or if required we can assist you to lodge an appeal to AAT
- We can discuss with you ban periods, and options for applying for further visas and determining your eligibility and meeting with other criteria for other visas
Please feel free to contact us anytime suitable to you and we can discuss with you your options and the costs involved in waiving condition 4020..