Unlike the 12-month ‘ban’, which is about visas held within the ban period, the 3-year ban is about visas refused within the ban period
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 3-year ‘ban’.
PIC 4020(2) provides as follows (emphasis added):
(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).
Imagine the following sequence of events:
- Date of application (subclass X): 5 Jan 2014
- Date of grant (subclass X): 10 Jan 2014
- Date of expiry (subclass X): 5 Jan 2018
- Date of application (subclass Y): 10 Jan 2019
Let us suppose that PIC 4020 applies to subclass Y and that there is evidence before the Minister (only 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 fact that a bogus document was provided as part of the subclass X application prevent the grant of subclass Y? No, for the following reasons.
Firstly, the 12-month ban under PIC 4020(1)(b) runs from 10 Jan 2018 to 10 Jan 2019, during which subclass X was not held. See our previous tip for more details on PIC 4020(1).
Secondly, unlike the 12-month ban, the 3-year ban makes no reference to whether or not there is evidence that a bogus document or false information was provided in relation to a visa held. Instead, it asks whether or not a visa was refused because of a failure to satisfy PIC 4020(1). As subclass X was not refused despite the existence of a bogus document, the 3-year ban does not apply.
Now, let us imagine a different set of events:
- Date of application (subclass A): 5 Jan 2014
- Date of refusal under PIC 4020(1) (subclass A): 10 Jan 2014
- Date of application (subclass B): 1 Jan 2017
- Date of decision (subclass B): 2 Jan 2017
Suppose that PIC 4020 applies to subclass B. Is the subclass B application subject to the 3-year ban? Yes, for the following reasons.
The terms ‘the application’ and ‘the visa’ under PIC 4020(2) refer to the application and respective decision at hand, namely subclass Y. Thus, the ban starts ‘3 years before the [subclass B] application was made’, that is 1 Jan 2014. It ends ‘when the Minister makes a decision to grant or refuse to grant the [subclass B] visa’, that is 2 Jan 2017.
The question then is: has the applicant ‘been refused a visa because of a failure to satisfy the criteria [under PIC 4020(1)]’ between 1 Jan 2014 and 2 Jan 2017? Yes, because subclass A was refused on 10 Jan 2014. Thus, subclass B must not be granted, unless the waiver applies. We will discuss waivers on another later article.
When can the applicant apply for subclass B? If an application is made after 10 Jan 2017, for instance on 15 Jan 2017, it will not be ‘banned’ as the date of refusal of subclass A (10 Jan 2014) would fall outside the ban period of 15 Jan 2014 to 15 Jan 2017.
Even if subclass B is decided only many years after application, for instance on 2020, the time of decision does not determine whether or not the ban applies. After all, the ban starts 3 years before the time of application for subclass B. Similarly to the 12-month ban, the fact that PIC 4020 might be contained in a time of decision provision under Schedule 2 of the Migration Regulations 1994 does not change the fact that the start of the 3-year ban is fixed on the time of 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