Public Interest Criterion 4020 (PIC 4020)

At its core, PIC 4020 is about ensuring that a visa applicant provides genuine, accurate and verifiable material, and that the Department can be satisfied as to the applicant’s identity. It generally involves two main aspects: first, whether the applicant has lodged any bogus documents, false information or misleading information; and second, whether the Department can be satisfied of the applicant’s true identity.

This criterion does not apply only to a handful of unusual visas. Many common visa categories may include a PIC 4020 requirement — for example student visas, visitor visas, employer-sponsored visas, skilled migration visas, family visas, partner visas and other temporary or permanent visas. Whether it applies still needs to be assessed against the particular visa category and the relevant legal requirements.

The key point for applicants is that PIC 4020 is not only concerned with “whether a fake document was lodged”. Inaccurate employment history, incorrect qualification documents, inconsistent personal information, undisclosed visa history, altered bank documents, false relationship material — and even an inability to verify identity information — can all give rise to PIC 4020 risk.

PIC 4020 does not only look at the material lodged with the current visa application. In some cases, the Department will also examine information and documents the applicant lodged in past visa applications — in particular, information relating to a visa held by the applicant in the 12 months before the current application.

This means a PIC 4020 issue may not stem from the current application at all, but from material lodged in an earlier visa application or while previously holding a visa. For example, an applicant may now be applying for an employer-sponsored visa, but the Department identifies inconsistencies in the study, work, financial or identity information given in a past student or visitor visa application — and the current application may be affected as a result.

The focus in these cases is usually first to identify exactly which application, which document and which piece of information the issue arises from, and whether that issue genuinely engages the legal requirements of PIC 4020. It is not enough to look only at whether the current application form was completed correctly.

Beyond refusal of the current visa application, in some cases a PIC 4020 issue can also affect future visa applications.

It is important to note that this does not mean an applicant is absolutely barred from applying for any Australian visa during the three- or ten-year period. The actual scope of the effect depends on the visa category applied for, whether PIC 4020 applies to that visa, and whether any waiver or other special circumstances exist in the case.

Some PIC 4020 issues may leave room for a waiver, but a waiver does not apply automatically, nor is it granted simply because an applicant explains “I did not do it deliberately”.

Generally speaking, the three-year bar relating to false or misleading information, bogus documents or non-genuine material may be open to a waiver in particular circumstances. Common waiver grounds include compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

For example, where the applicant has a long-standing, stable family relationship with an Australian citizen or permanent resident partner, where minor children would be seriously affected by a refusal, where the applicant carries significant family caring responsibilities in Australia, or where the case involves circumstances of real significance to Australia’s interests, these may need to be brought into the waiver analysis.

The focus of a waiver, however, is not simply on showing that the applicant themselves would suffer hardship. More important is to show how the relevant circumstances affect Australia’s interests, or how they affect an Australian citizen, permanent resident or eligible New Zealand citizen. The material needs to be specific and genuine, and to explain why the visa should still be granted despite the PIC 4020 issue.

Not every PIC 4020 issue can be dealt with by way of a waiver. Identity-related issues usually carry the highest risk, because if the Department cannot confirm an applicant’s true identity, the ordinary waiver pathway generally does not resolve the problem.

In addition, even where a case falls within a category that may be eligible for a waiver, that does not mean the waiver will succeed. Where an applicant simply emphasises that their future plans would be affected, that they would suffer significant financial loss, or that their study or work arrangements would be disrupted, this is often not enough to meet the waiver requirements. Waiver material needs to point to legally recognised grounds, not general inconvenience or personal disappointment.

Before preparing a waiver, it is therefore necessary first to assess whether the case falls within a waivable category, and then whether there is a sufficiently strong factual basis. Writing every hardship into an explanatory letter does not, in itself, amount to a valid waiver ground.

In many PIC 4020 cases, before any refusal the applicant will first receive a section 57 natural justice letter. This letter usually sets out the adverse information held by the Department and invites the applicant to respond.

The S57 stage is very important, because it is the applicant’s key opportunity, before a refusal, to explain the issue, correct any misunderstanding, provide further evidence and put forward waiver grounds. In responding, it is first necessary to be clear about exactly what the Department is challenging — document genuineness, inconsistent information, an inability to confirm identity, or a problem with material in a past application.

Where the issue is a factual error, the response usually focuses on correcting it with evidence. Where a document’s origin is unclear, it is necessary to explain how the document was obtained, who issued it, and whether it can be verified. Where the issue concerns material provided by a third party, it is necessary to explain the applicant’s relationship to that material, whether the applicant was aware of the relevant problem, and whether there is objective material to support the explanation.

If a visa has already been refused on PIC 4020 grounds, the next step is to consider whether the refusal decision carries a right of administrative review, and whether the review period is still on foot. Some cases can be referred to the Administrative Review Tribunal (ART), but the visa category, the applicant’s location and the type of decision may affect the right of review.

At the review stage, the applicant usually needs to deal afresh with the core PIC 4020 issues, including whether the documents or information identified by the Department are in fact false or misleading, whether the issue is a material matter, whether it involves an identity issue, and whether any waiver grounds exist.

If there is no right of review, or a review has already failed, the case may need to be assessed further for any scope for judicial review. Judicial review, however, is not a re-hearing of the visa application: the court generally only examines whether the decision was lawful, and will not re-decide whether the visa should have been granted.

For this reason, after a PIC 4020 refusal it is not enough simply to consider “applying for another visa”. If a three- or ten-year bar has already arisen, a new visa application may still run into the same problem.

PIC 4020 deals primarily with genuineness, documents and identity in a visa application, whereas VACCU generally relates to character-risk assessment, and a NOICC is a notice the Department issues before considering whether to cancel a visa already held. These are not the same concept, but in practice they can overlap.

For example, a document lodged by an applicant that is suspected of being non-genuine may first give rise to a PIC 4020 issue; if that issue further reflects integrity, character or risk concerns, the case may also engage broader character assessment. If the applicant already holds a visa and the Department later discovers false or misleading information in a past application, the applicant may receive a Notice of Intention to Consider Cancellation (NOICC).

When handling a PIC 4020 case, therefore, it is not enough to look only at the current refusal risk; it is also necessary to consider whether it may affect an existing visa, future visa applications, character assessment or the risk of visa cancellation.

PIC 4020 cases are very common in practice. They include lodging unverifiable qualification or financial material in a student visa, lodging non-genuine employment references in an employer-sponsored visa, providing inaccurate periods of work or position duties in skilled migration, lodging relationship evidence in a partner visa that does not match the true relationship, concealing a past refusal or the true purpose of a visit in a visitor visa, and giving inaccurate answers about criminal history, visa history or identity information on the application form.

Some issues arise from the applicant’s own errors in completing the form, some from inaccurate references provided by an employer or education provider, and some from poor handling of the material by an agent or other third party. Whatever the source of the issue, once the material has been lodged with the Department, the applicant may be required to provide an explanation.

This is precisely what makes PIC 4020 cases difficult to handle: the applicant needs to explain not only “I did not intend to deceive”, but also why the problem with the material arose, whether that problem genuinely affects the visa assessment, and whether there is evidence to support the explanation.

NS Legal can assist clients with matters relating to Public Interest Criterion 4020 (PIC 4020), including reviewing a section 57 natural justice letter, analysing the adverse information raised by the Department, and assessing whether a case involves false or misleading information, bogus documents, identity issues, errors in past application material, or three- or ten-year bar risk.

We can assist clients to prepare explanatory letters, organise supporting material and put forward waiver grounds, and provide overall strategic advice on administrative review, judicial review, future visa applications and the risk to any existing visa.

In cases involving PIC 4020, the earlier and more accurate the response, the greater the opportunity to address the issue before a refusal. The NS Legal team can help you assess your current risk and prepare a response tailored to the key issues in your case.