Breaking a Nut with a Sledgehammer – the use and abuse of PIC 4020

Public interest criteria (‘PIC’) 4020 was first introduced in April 2011 as a measure to attempt to reduce fraud in visa applications. Originally the provision only applied to General skilled migration and employer sponsored visa applications, however now, if any of the following visas are applied for, it is necessary to satisfy PIC 4020:

• skilled migration visas
• business visas
• temporary visas
• student visas
• family visas.

In summary, the impact of PIC 4020 is that a visa can be refused if an applicant provides a bogus document or information that is false or misleading in relation to the application, or if the Minister is not satisfied of an applicant’s identity. Refusal is possible even if an applicant did not knowingly provide false or misleading information with the application. Apart from having a visa refused, an applicant is also subject to a three-year ban period in respect of any visa application for a visa which is subject to PIC 4020 – these days, most visas!

While no one would argue that the objective of maintaining integrity within our visa system is of paramount importance, there is great concern within the migration industry that PIC 4020 is being used in a manner which could not possibly have been intended when first introduced into legislation. Examples of refusal situations and consequent three-year bans include:

• poorly completed applications which do not have all the questions answered, leaving case officers to allege that the application is ‘misleading’,
• persons obtaining police clearances in respect of visa applications and then discovering minor convictions entered against them in their absence and without their knowledge which of themselves would not have precluded them from eligibility for migration,
• persons receiving notices of intention to cancel because of incorrect or inconsistent spelling of names in application forms,
• references from employers containing incorrect information regarding the applicant.

It is possible to obtain a waiver of a PIC 4020 determination if the applicant can show that the grant of the visa would be in the interests of Australia, or that there are compelling and compassionate circumstances affecting the interest of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen.

It is obvious that when preparing a visa application applicants must take care to ensure that all information which is provided is accurate. Sometimes however it is not possible to know with absolute certainty that everything which has been provided is 100% correct. As soon as it becomes apparent that there may be a problem with information contained in a visa application, urgent steps should be taken to ensure that the correct information is provided to the Department with an explanation setting out the circumstances which gave rise to the situation.