đ¨ Oops, I Forgot to Mention My DUI: A Real Example of PIC 4020 in Action
If youâve ever applied for a visa and second-guessed what you really need to declare, youâre not alone. But hereâs the thing: in the world of Australian immigration, what you leave out of your visa application can sometimes be far more damaging than what you leave in.
In this blog post, weâre sharing a real-life scenario that perfectly captures how PIC 4020 (Public Interest Criterion 4020) works, and just how easily it can be triggered - sometimes without you even realising thereâs a problem.
We recently had a consultation with a couple, letâs call them Jimmy and Jenny, preparing to apply for their next visa. Jimmy had received a drink driving charge earlier in the year. When he applied for his third Working Holiday visa a few months later, he didnât declare it. He thought he didnât need to, because he was told it âwouldnât count as a conviction.â
This scenario is all too common. And the harsh truth? Often the conviction itself wouldnât have been an issue, but not declaring turns it into a way bigger issue with huge risks.
Providing false or misleading information, even by accident, can result in your visa being refused under PIC 4020 which leads to a three-year ban on future visa applications.
The below âemailâ is an extract from an actual summary we sent the couple after our consult (with names changed for privacy and some bits removed/amended).
If you're applying for a visa and wondering what to do with a past mistake, you might relate.
â ď¸ But first, we have to state the obvious:
This isnât advice for you. Itâs a real-life example based on one coupleâs situation, shared to help you understand how PIC 4020 can play out. Immigration law is full of fine print, and even small differences can have big consequences.
The only advice you should take from this page? Get legal advice specific to your situation. Donât wing it with a blog post. Book a proper consultation so we can actually help.
EMAIL EXTRACT:
Hi Jimmy and Jenny
There are a number of Public Interest Criteria (PIC) in the Migration Regulations which include things like health criteria, character criteria and other criteria that affect the public interest. One of these is PIC 4020, which referes to the provision of false or misleading information, or bogus documents. PIC 4020 is criteria specifically attached to nearly every visa application.
Below is an extract of the parts of PIC 4020, relevant to you:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the ART during the review of a reviewable migration decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) 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.
PIC 4020(1)
The effect of PIC4020(1) is that incorrect information given to the DHA in a current visa application, or an application for a visa held within the last 12 months (eg Jimmyâs current WHV), is grounds for refusal.
In your case, Jimmy has a conviction that was record in last year and this was not declared in his subsequent WHV application â the one he holds currently.
As you can see in (5) In a âmaterial particularâ refers to information that is 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.
So, while Jimmy would have most likely been approved the visa anyway had the DUI been declared, the fact that it wasnât falls within the scope of PIC 4020.
PIC 4020(2)
In short, the effect of PIC4020(2) means a refusal on 4020(1) grounds results in a 3yr ban.
As the clause states, if you, or a member of your family unit (eg de facto partner), has a visa refused on PIC 4020 specifically, then you would be subject to refusal of any visa application that PIC 4020 applies too (virtually all of them) within the 3 years of that 4020(1) refusal. Notably, (2) takes into account members of the family unit regardless of whether they are an applicant. So, a refusal on 4020(1) can mean a 3yr ban for the relevant person and their partner or other family unit members.
Additional Policy Considerations
The DHA has policy documents, which essentially guide the case officers on how they should apply the regulations. They reference your exact scenario a number of times throughout the policy, unfortunately unfavourably.
In the DHA policy, it does state that when making a decision in relation to PIC 4020(1) it is necessary for decision makers to consider whether there was âpurposeful falsityâ or whether there is an innocent explanation for the provision of false information.
In plain English, 'purposeful falsity' is 'being intentionally untrue or incorrect'.
If, in response to a natural justice letter, the applicant can show the provision of the bogus document or the false or misleading information was an innocent mistake, then they may satisfy PIC 4020(1).
The responsibility is on the applicant to explain in their response to an invitation to comment the reasons why they did what they did and to demonstrate their actions were a genuine mistake.
Once comment is received from the applicant, the decision maker must consider what conclusion to draw in relation to PIC 4020. If the applicant claims to have made an innocent mistake, and the decision maker believes their claims about the mistake, then it would be open to the decision maker to find that there is no purposeful falsity, and that PIC 4020 is satisfied.
Impact on Outcomes
The lowest risk and lowest cost fix to this issue is to go offshore and not hold a visa for 12 months. If you didnât hold a visa for 12 months, when making the next application, there would be no visa to fall into the scope of PIC 4020.
It is possible that you could submit a subsequent application, correctly declaring the conviction, and the DHA donât question it. I have seen this happen, but this is not the norm, so you should not expect this.
Assuming the DHA do take issue with it, they should issue a notice (a natural justice letter) with a chance to respond â basically a âplease explainâ. This gives you the chance to put forward evidence of innocent mistake and/or to address any compelling or compassionate circumstances that may be relevant (as referred to in 4020(3)).
If you are successful in your response, for example if you succeed in claiming there was no âpurposeful falsityâ, then the visa application can be approved. An approval, after addressing the issue, would be a good sign for further applications also. However, it is possible you could get a harsh case officer who raises it again within the 12 months. If you do get an application over the line, Iâd suggest avoiding any further applications until at least 12 months from the cease date of your WHV.
If it is not successful, and the application is refused on PIC 4020(1), you will have a 3yr bar on future visas â due to PIC 4020(2). It may be possible to appeal a PIC 4020(1) refusal. Such a refusal could also impact further applications by Jenny, while she remains your de facto partner.
Kind regards
Visa Sidekick