Why the Details Matter: A Recent PIC 4020 Success Story
Public Interest Criterion 4020 (PIC 4020) remains one of the most daunting provisions in the Migration Regulations 1994. It applies to almost every visa application and is commonly referred to as the “fraud” or “integrity” PIC.
The best strategy for avoiding issues under PIC 4020 is straightforward: ensure that all information provided to the Department of Home Affairs is accurate and not misleading. If corrections need to be made, they should be made as soon as possible.
This is not often possible, of course, especially if the application was prepared by the client or another adviser.
There are also occasions where the Department may scrutinise an application and question the information provided, even where the applicant has acted honestly. That was the case in a recent matter in which we acted.
The Background
Our client had claimed exactly 12 months of work experience for the purposes of obtaining work experience points for a Subclass 190 Skilled Nominated visa.
The fact that our client claimed exactly 12 months of work experience appeared to arouse suspicion in the mind of the Minister’s delegate. As a result, the delegate undertook a detailed review of the application materials and issued an 11-page Natural Justice Letter identifying numerous alleged inconsistencies.
Among other things, the delegate questioned:
- Whether the employment had actually occurred (particularly because the employer had not paid our client’s superannuation entitlements); and
- Typographical errors appearing in the employer’s reference letter, which the delegate considered unusual for a formal document of this nature.
The delegate also raised matters as seemingly trivial as the timing in which our client provided Skills Progress Reports to the skills assessment authority.
The Difficult Position Faced by the Applicant
Our client was faced with two options:
- Respond to the Natural Justice Letter directly, or
- Withdraw the extant applicant and lodge a fresh visa application.
The second option carried significant uncertainty. With Subclass 190 visas, the ability to lodge a new application depends entirely on an unpredictable invitation process. It also carried the risk that the applicant might have to leave Australia and potentially never be able to return.
Responding to the Natural Justice Letter also carried risk. If the Department maintained the view that false or misleading information had been provided, the application would normally be refused without further reference to the applicant. Arguing compelling and compassionate circumstances to waive PIC 4020 is also fraught, given the high threshold for waiver.
In this instance, our client had little choice but to confront the Natural Justice Letter “head-on”.
A Critical Issue in the Natural Justice Letter
Upon carefully analysing the Letter, we noticed something significant.
Although the delegate listed a number of alleged inconsistencies, the letter did not clearly identify what information was alleged to be false or misleading.
This is important because the Department’s own policy states that when a decision-maker believes an applicant may fail PIC 4020, the Natural Justice Letter must clearly identify:
- the specific information considered to be false or misleading; and
- how that information is material to a criterion for the grant of the visa.
Without this information, it becomes extremely difficult for an applicant to meaningfully respond.
Our Approach
In responding to the Natural Justice Letter, we adopted a two-part strategy.
First, we respectfully pointed out that the Department had not properly articulated the alleged false or misleading information on which it sought to rely, and invited the delegate to clarify the allegation so that the applicant could respond meaningfully.
Second, out of an abundance of caution, we addressed each alleged inconsistency individually, providing supporting evidence where possible.
Importantly, our client maintained that the employment had genuinely occurred. Supporting documentation – including tax records and bank statements – clearly supported that position.
The Outcome
Although I was cautiously optimistic, I advised the client that his prospects of success were around 65%.
To my genuine surprise, less than a week later the Subclass 190 visa was granted.
Lessons from the Case
This case highlights several important lessons:
- Do not be intimidated by a Natural Justice Letter.
Carefully analyse the allegations to determine whether they are genuinely substantive. In this case, within the mire of detail, it became clear (but only after some careful reading) that the delegate’s allegations were without foundation. - Some Natural Justice Letters should be challenged.
In certain cases, it may be appropriate to address deficiencies in the Department’s reasoning directly. - Ensure supporting documents are of high quality.
Small issues – such as typographical errors in reference letters – can raise unnecessary suspicion. Prevention is always better than cure. If there are opportunities to have documents corrected prior to lodgment, liaise with third parties if necessary to get those documents right. - It’s all in the details.
A careful review of documentation can help avoid unnecessary complications later. By the same token, responding to Natural Justice Letters requires a keen eye for detail in respect of what the Department has alleged, and in what is provided to counter those allegations.
PIC 4020 issues can have serious consequences for visa applicants. If you or your client is dealing with a PIC 4020 concern, it is important to obtain experienced legal advice as early as possible.
If you require assistance with a PIC 4020 matter, please contact Melissa Phan or Lester Ong..
