When the 12-month ‘ban’ ends
PIC 4020 contains three ban periods, although the term ‘ban’ is not used: 12 months, 3 years and 10 years. This tip deals only with the 12-month ‘ban’.
PIC 4020(1)(b) provides as follows (emphasis added):
There is no evidence before the Minister that the applicant has given… a bogus document or information that is false or misleading in a material particular in relation to … a visa that the applicant held in the period of 12 months before the application was made.
Imagine the following sequence of events:
- Date of application (subclass X): 5 Jan 2018
- Date of grant (subclass X): 10 Jan 2018
- Date of expiry (subclass X): 15 Jul 2018
- Date of application (subclass Y): 1 Jan 2019
Let us suppose that PIC 4020 applies to subclass Y and that there is evidence before the Minister (at the time of processing the subclass Y application) that the applicant provided a bogus document as part of the subclass X application.
Will the date of decision of the subclass Y application determine whether the 12-month ban applies to the subclass Y application? No, for the following reasons.
The fact that PIC 4020 is usually a ‘time of decision’ criterion under Schedule 2 of the Migration Regulations 1994 does not mean that we should ignore the time of application (TOA) for subclass Y. After all, the above terms ‘before the application was made’ refer to the TOA for subclass Y.
The period of 12 months before the subclass Y application was made is from 1 Jan 2018 to 1 Jan 2019. As a result, the question is: is there evidence before the Minister (at the time of deciding the subclass Y application) that the applicant provided a bogus document in relation to a visa held between 1 Jan 2018 and 1 Jan 2019? Yes, because the subclass X visa was held within that period.
Consequently, even if the subclass Y application is only decided in 2021 (for instance), PIC 4020(1)(b) would still prevent the grant of that subclass.
The ban will only come to an end after 12 months from the date the person last held subclass X: 15 Jul 2019. An application for subclass Y made before then would fall within the 12-month ban. An application made afterwards would not.
In effect, the 12-month ban is a TOA (not time of decision) criterion for the purposes of the subclass Y application.
Disclaimer: the above is a mere tentative analysis of a legislative provision. The views there expressed might not reflect the views of the Department, the AAT or the courts. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.
Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au