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.

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Public Interest Criteria (PIC4020)

New identity requirements were introduced for Public Interest Criterion (PIC) 4020 from 22 March 2014.

PIC 4020 is a criterion that attaches to a number of visa subclasses. If PIC 4020 is part of the criteria for the particular skilled migration, student, business skills, family or temporary visa you have applied for, you must satisfy PIC 4020 in order to be granted your visa.

Since 2011, PIC 4020 has enabled refusal of a visa if an applicant provides a bogus document or information that is false or misleading in relation to their application.

The new identity requirements mean that as part of your visa application you must now satisfy the Minister of your identity. If you are refused a visa because you are unable to satisfy the Minister of your identity, you will not be granted a visa for a period of 10 years after refusal. You won’t be able to provide reasons to waive these new requirements, as they are not subject to a waiver.

If your visa is refused because you did not satisfy the Minister of your identity, anyone who is listed as a member of their family unit will also be refused. These family members will also be prevented from being granted another visa (where the visa requires you to satisfy PIC 4020 as part of the visa criteria) for 10 years.

The other criteria of the PIC remain the same and you are still required to satisfy them in order to be granted a visa.

Visa applicants must not provide bogus documents or false or misleading information in support of their visa application. If your visa application is refused because you or any of the members of your family unit provide bogus documents or information that is false or misleading in relation to your application, you might be prevented from being granted a visa for three years.

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Health waivers

A waiver of the need to meet the health requirement (a health waiver) is available for applicants of certain visa subclasses. The visa subclasses that have a health waiver available are grouped into four categories:

• Business Long Stay (457)
• Onshore Skilled
• Family and Non-Humanitarian
• Humanitarian.

A health waiver may only be exercised after a Medical Officer of the Commonwealth (MOC) has determined that the visa applicant does not meet the health requirement and where we are satisfied that the granting of the visa would be unlikely to result in undue costs or prejudice to access (health care and community services that are in short supply in Australia).

No health waiver is available where you have been found to have active tuberculosis, or another condition considered to be a threat to public health.

Health waivers for Business Long Stay (subclass 457) Visa applicants

A health waiver can be exercised for you or your dependants, if you have applied for a 457 visa and have failed to meet the health requirement on significant costs or prejudice to access grounds. The health waiver can be exercised if your Australian employer signs a 'nominator undertaking' agreeing to meet all the costs relating to the health condition that caused you, or your dependants, to fail to meet the health requirement. This waiver is referred to as a Public Interest Criteria (PIC) 4006A health waiver.

Health waivers for Skilled (Temporary Transition Stream of subclasses 186 and 187) visa applications

A skilled health waiver may be exercised for the Temporary Transition Stream of the Employer Nomination Scheme (subclass 186) and Regional Sponsored Migration Scheme (subclass 187) from 1 July 2012 where we are satisfied that the granting of the visa would be unlikely to result in undue costs or prejudice to access. Previously, a skilled health waiver was available for subclasses 846, 855, 856, 857 however these subclasses have now closed.

This waiver is referred to as a PIC 4007 skilled health waiver.

Note: Where the estimated health care and community service costs of the disease or condition are equal to or greater than AUD500 000 and/or prejudice to access has been identified, the department may refer your case to the Australian state or territory government agency in which you are residing, or intend to reside if your visa is granted, for a recommendation as to whether they would support a health waiver being exercised.
Health waivers for Family and non-Humanitarian visa applicant

A health waiver is available for certain family and non-humanitarian visas where we are satisfied that the granting of the visa would be unlikely to result in undue costs or prejudice to access. These waivers are referred to as a PIC 4007 Family and non-Humanitarian health waiver.

The health waiver process

You do not need to apply for a health waiver. If you are eligible for a health waiver the department will send you a letter advising that you, or your dependants, have failed to meet the health requirement and that a health waiver is going to be considered.

The letter will invite you to put forward additional claims and information in support of a health waiver being exercised.

Once your response has been received, the department will then assess your ability and the ability of any of your supporters to mitigate the potential costs and use of health care and community services, and any compassionate and compelling circumstances that would support a health waiver being exercised in your case.

Each health waiver is examined and determined on a case by case basis. The delegate will consider all the available information, including information you put forward in support of a health waiver.

In certain cases, this will include the opinion of the department's national office, or an Australian state or territory government agency (skilled health waivers only) which will be sought before a decision on whether to exercise a health waiver or not is made.

Factors that may be considered by the department in determining a health waiver include: 

·         That the nominated occupation is in demand or severe shortage, Australia-wide and in the jurisdiction/geographical area where they propose to reside;

·         That the family is already settled or proposes to settle in a remote, rural or regional area;

·         That the family's care obligations constrain their earning capacity or ability to fully deploy their skills or practice their trade/profession/occupation in the economy;

·         the skills and qualifications of the main visa applicant and their migrating family members;

·         the extent to which the visa applicant and/or their family may be able to mitigate potential costs/prejudice to access issues identified by a MOC;

·         the reasons why the family would find it difficult to return to their home country;

·         that it is very unlikely or impossible that the non-migrating member of the family unit who does not pass the health criteria will ever migrate to Australia;

·         the education and occupational needs of, and prospects for the applicant in Australia;

·         the potential for the applicant’s state of health to deteriorate, taking into account not only the known medical factors but also influences such as the strains of adjusting to a new environment, life-style, occupation etc (as applicable to the visa class and the individual).

Please contact Nevett Ford Lawyers (Melbourne) to speak to one of our 5 dedicated and experienced immigration lawyers if you require advice and assistance by telephone: 03 9614 7111 or by email at: rcurtisgriffiths@nevettford.com.au. 

Legal advice and assistance is highly recommended.

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Changes to Public Interest Criteria (PIC4020)

Amendments to the Migration Regulations 1994 (the Regulations), which will take effect from 22 March 2014, seek to prevent identity fraud in Australia’s visa and citizenship programs, by expanding the application of Public Interest Criterion (PIC) 4020 – so that a relevant visa is not granted unless the Minister is satisfied of the identity of the visa applicant.

PIC 4020 was introduced in 2011 to strengthen the integrity of Australia’s immigration program by detecting and preventing visa fraud.  PIC 4020 provides a ground to refuse to grant a visa where there is evidence that the visa applicant has given, or caused to be given, 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 period of 12 months before the application was made.

PIC4020 currently applies to over 80 onshore and offshore visas in the students, skilled, temporary and family caseloads.  PIC4020 does not currently apply to refugee, humanitarian or protection visa applicants.  The proposed amendments will not impact on the refugee, humanitarian and protection visa caseloads as these visas are not currently subject to PIC4020. 

Overview of changes

The proposed changes will amend PIC 4020 to introduce a specific identity requirement into the grant of a visa. The features of the proposed identity requirement are:

•             a visa must not be granted unless the Minister is satisfied of the identity of the person; and

•             a decision to refuse to grant a visa where the Minister is not satisfied as to the identity of an applicant would not be subject to waiver; and

•             a ten year exclusion period for grant of another visa would apply where an applicant is refused a visa under PIC4020 on identity grounds.

A decision to refuse to grant a visa where the Minister is not satisfied as to the identity of an applicant would not be subject to waiver.  Because of the foundational element of identity to the integrity of Australia’s migration program, it is appropriate that the exclusion period is greater where a visa is refused on the grounds of identity.  A ten year exclusion period is substantially more than the current three year period under PIC4020 for other types of fraud, but less than a life-time ban. The Department claims that a ten-year exclusion period would better align with the policies of Australia’s Five Country Conference (FCC) partners.  The Department also claim that it would reduce Australia’s potential status as a country of ‘last resort’, where an individual may exhaust their options for migration to other FCC countries before applying to Australia.

In addition, under the proposed amendments, an applicant refused a visa under PIC 4020 on identity grounds would be subject to a ten year exclusion period for the grant of another visa.  This reflects the Government’s view of the primacy of accurately identifying non-citizens to the integrity of Australia’s migration program, and is intended to act as a deterrent.

The new identity requirement is designed to encourage cooperation and compliance by visa applicants with the Department to ensure accuracy in establishing their identity.  The new identity requirement would also cater for an applicant who does not cooperate and provide information or documents where requested to assist the Department to be satisfied as to their identity.  This is because under the new identity requirement, the Minister must be satisfied as to the identity of an applicant to grant a visa.  If insufficient information/documents are provided, or an applicant becomes uncooperative, the visa would be refused.  The Department would have discretion to consider a range of identity-related documents (not only a passport), as well as individual applicant circumstances (such as the availability of identity documents to the applicant) in determining whether it is 'satisfied' as to the identity of an applicant.

 

Please contact Ryan Curtis-Griffiths, Director, Nevett Ford Lawyers Melbourne by email: rcurtisgriffiths@nevettford.com.auor by telephone: +61 3 9614 7111 if you require any advice or assistance.

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