Some Recent PIC 4020 Success Stories

Public Interest Criterion 4020 (“PIC 4020“) is a notoriously difficult part of the Migration Regulations 1994 (Cth).

PIC 4020 in effect imposes a penalty of sorts on a visa applicant who “gives or causes to be given“:

(a) information that is false or misleading in a material particular; or

(b) a bogus document;

in relation to a visa application.

Many visa applicants and, in fact, their migration agents, struggle to fully grasp how PIC 4020 operates. Allied to this is the fact that failing to deal with PIC 4020 properly can seriously disadvantage a visa applicant. Obviously, prevention is better than cure. To be sure, the provisions are intended to encourage integrity in visa applications – to the extent that the smallest whiff of anything misleading could enliven their operation, even when the provision of misleading information was entirely inadvertent.

Whilst I often approach PIC 4020 cases with a great deal of pessimism, I am pleased to say that I have been involved in two recent cases where I was able to obtain successful outcomes for my clients.

The first case involved a client who had arrived in Australia on a 457 visa. Subsequently, he applied for permanent residency (without the assistance of a migration adviser) but sought to include a family member of dubious relationship to him. The Department refused the application on the basis that he had misled the Department as to the true nature of the family relationship. Under PIC 4020, this also resulted in a three-year “grant bar”.

The three-year “grant bar” meant that when the client came to renew his 457 visa, it was refused.

I was engaged by the client to, at that stage, conduct a merits review of the 457 refusal in the Migration Review Tribunal. We were ultimately successful in arguing that PIC 4020 ought to be waived on the basis that there were compelling reasons affecting the interests of Australia. The client was (and still is) a high-level employee in the health care field and working in an in-demand occupation. His employer was prepared to give evidence supporting the need to retain his services; the effect his absence would have on the employer’s operations; and the flow-on effect on public health care.

Following remittal of the application to the Immigration Department for reconsideration, the client was then granted his 457 visa renewal.

Some months later, the three-year “grant bar” had expired and we were able to lodge a new permanent skilled visa for the client, which I am pleased to say, without having to again confront PIC 4020. The client and his family are now Australian permanent residents.

The second case involved a client who had failed disclose the fact that he had a very minor conviction (a $100 fine for public urination) in the course of applying for a Subclass 457 visa. The 457 visa was granted and two years later, he applied for permanent residency under the Subclass 186 (transitional stream) visa. When he lodged the Subclass 186 application, he disclosed his conviction. Interestingly, the Immigration Department found that he failed to satisfy PIC 4020 because a visa which he held in the last 12 months was infected by misleading information (namely, the client had stated that he had no criminal convictions when he applied for the 457 visa, being a visa he currently holds).

We were able to obtain evidence to the effect that, despite the incident which led to the client’s conviction having occurred prior to the lodgment of the 457 application, the client only received notice of the conviction some months after the 457 visa was granted. Accordingly, we argued, the client was never aware of there being a conviction during processing of his 457 application and therefore could not have disclosed it.

To further strengthen our case, we obtained evidence from the client’s employer about the effect it would have on the business if the client were unable to remain in Australia, and the impact it would have on the employer’s ability to fulfil various contracts. On our advice, the client’s employer was also able to obtain supporting letters from local Members of Parliament.

The result was that the Immigration Department granted the client’s Subclass 186 visa. We will never know exactly what helped the client “get across the line”, but I’m glad that we were able to assist the client obtain a very positive outcome.

If PIC 4020 is enlivened during processing of a visa application, or if a visa applicant has previously been affected by PIC 4020, it is important for the visa applicant and their adviser to understand the implications of PIC 4020 so that the most advantageous strategy can be deployed.

If you or your client requires assistance with a PIC 4020 issue, please email Lester Ong (MARN 0427625) or call 08 9426 6222.