Everything you need to know about Public Interest Criterion 4020
Has your Visa been refused under Public Interest Criterion 4020 Notice?
Here’s What You Need to Know
The occurrence of fraud or accidental provision of fraudulent documents across the visa applications process poses a high risk for not only the Department of Home Affairs but also for society at large. The concerns of the Department seem to stem from a real risk of visa applicants who fraudulently misuse their visa to facilitate illegal and heinous acts, including people smuggling, human trafficking, drug trafficking or terrorist operations.
While these are justified and compelling policy factors, which are in the public’s interest, the vast majority of genuine visa applicants who are subject to this rigorous requirement are generally people who are simply seeking a better opportunity or a different way of life.
Genuine visa applicants who, in most cases and by no fault of their own, tend to become embroiled in disputes with the very country that they are seeking entry into or protection.
Fortunately for genuine visa applicants, there is a substantial authority surrounding Public Interest Criterion 4020 which supports the Minister’s discretion to waive the requirements in prescribed circumstances.
Which Type of Visa does Public Interest Criterion 4020 apply to?
In most cases, the Public Interest Criterion 4020 will apply if your visa is a:
- Skilled migration visa;
- Business visa;
- Temporary visa;
- Student visa; or
- Family visa
The Requirements of Public Interest Criterion 4020
Pursuant to the Migration Regulations 1994 (Cth) (‘The Regulation’) Schedule 4 Public Interest Criterion 4020, the Minister or their delegate may refuse a person’s visa application if:
- Bogus documents or information that is false or misleading is fraudulently provided to the Minister 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; and
- The Minister is not satisfied with respect to the applicant’s identity.
The Public Interest Criterion 4020 extends to circumstances where an applicant or a family member of the applicant was previously refused a visa due to their failure to satisfy certain requirements.
What is considered a Bogus Document?
Section 5 (1) of the Migration Act 1958 (Cth) (‘The Act’) defines a bogus document as a document that the Minister reasonably suspects is a document that:
- Purports to have been, but was not, issued in respect of the person;
- Is counterfeit or has been altered by a person who does not have authority to do so; or
- Was obtained because of a false or misleading statement, whether or not made knowingly.
What is Information that is False or Misleading?
Information that is false or misleading in a material particular is defined under The Regulation as:
- False or misleading at the time it is given; and
- 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.
Bogus Documents and Information that is False or Misleading Test – Current Visa Applications
The Minister or their delegate may only refuse a bogus document or information that is false or misleading on the basis of Public Interest Criterion 4020 If the document or information has the quality of ‘purposeful falsity’. This test only generally only applies to current visa applicants.
If the current visa applicant provides the Minister or their delegate with a bogus document or information that is false or misleading, the applicant bears the onus of proving that the document or information did not have the quality of ‘purposeful falsity’.
In Trivedi v Minister for Immigration and Border Protection  FCAFC 42:
The court held that to refuse on the basis of PIC 4020 it is necessary that the information or document have the quality of “purposeful falsity” whether or not the visa applicant can be shown to have personal knowledge of that fact. A visa application could not be refused due to PIC 4020 if a visa applicant could explain an innocent mistake in a document or information provided by them or on their behalf.
Bogus Documents and Information that is False or Misleading Test – Previous Visa Applications
If your visa application was previously refused, the Minister and their delegates bear a general obligation to document their assessment and their decision-making of Public Interest Criterion 4020, especially in relation to bogus documents or information that is false or misleading.
Depending on your circumstance, you may be eligible to appeal the visa refusal in the Administrative Appeals Tribunal.
If you have received a letter from the Minister or their delegate, we recommend that you seek legal advice to ascertain your position.
Further Investigation for Bogus Documents or Information that is False or Misleading
In some circumstances, it may be appropriate for the Minister or their delegate to conduct an investigation or interrogation if the Minister or delegate reasonably suspects that the visa applicant has provided the Department with bogus documents or information that is false or misleading.
In other circumstances, the Minister or their delegate may also refer the visa applicants matter to other departmental offices, issuing authorities, biometric checks or other relevant government agencies.
Identity Requirements of Public Interest Criterion 4020
The visa applicant bears the onus of proofing that the identity information is true and correct. Identity fraud is generally considered significantly more serious than other types of visa fraud as a person’s identity creates the foundation for all checks, including national security and character checks, and further entitlements could possibly be derived from identity fraud (e.g. Medicare).
Importantly, the Minister or their delegate must be satisfied that the applicant or the family member has not been refused a visa within a specified time because of a failure to previously satisfy the identity requirement.
The ‘Natural Justice’ Letter from the Minister or their Delegate
The principal of natural justice in accordance with section 57 of The Act may apply and provide visa applicants with an opportunity to comment or provide additional documentation or information to the Minister or their delegate.
The importance of such an opportunity should not be overlooked by the applicant as the response from the applicant could be tendered as evidence in the event that the Minister or its delegate exercises their discretion to waive the requirements of Public Interest Criterion 4020.
The Minister Discretion to Waive the Requirements of Public Interest Criterion 4020
The Minister or their delegate may only waive the requirement of a bogus document or information that is false or misleading if satisfied that:
- 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.
Notably, there is no provision in The Regulation to waive the Minister’s satisfaction with respect to the applicant’s identity.
What is Compelling or Compassionate Circumstances?
The Act or the Regulation does not provide a specific definition for ‘compelling’ or ‘compassionate’, which means the ordinary meaning of the words will apply.
It is beyond the scope of this article to provide an exhaustive definition of what will be ‘compelling’ or ‘compassionate’ in an applicant’s circumstance.
If you would like to ascertain whether your circumstance constitutes ‘compelling’ or ‘compassionate’ in light of Public Interest Criterion we strongly recommend seeking independent legal advice.
Contact Potts Lawyers for Legal Advice
We recommend that you seek independent legal advice as soon as possible to ensure that you are not subject to removal or deportation from Australia.
Please note that this advice is for general background information only and is not intended as a legal advice you can rely on. To obtain legal advice you can rely on you must contact a lawyer who can provide advice on your matter.