PIC 4020 is a ‘one fails all fail’ criterion in some circumstances
PIC 4020 contains three ban periods, although the term ‘ban’ is not used: 12 months (subclause (1)), 3 years (subclause (2)) and 10 years (subclause (3)), as follows (emphasis added):
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable 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).
…
(2A) The applicant satisfies the Minister as to the applicant’s identity.
(2B) The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
Subclause (1) – 12-month ‘ban’
Although that subclause makes no reference (insofar as it relates to the decision of the primary applicant’s application) to a member of the family unit (MOFU) applicant, that does not necessarily mean that the giving by a MOFU applicant of bogus documents or false information will have no effect on the primary applicant’s application. If Schedule 2 of the Migration Regulations 1994 requires a MOFU to satisfy PIC 4020 as part of the primary criteria, PIC 4020 will have the effect of a ‘one fails all fail’ criterion anyway.
For instance, Schedule 2 for subclass 189 includes the following primary criteria (emphasis added):
(1) The applicant satisfies public interest criteria … 4020 …
…
(3) Each member of the family unit of the applicant who is an applicant for a Subclass 189 visa satisfies public interest criteria … 4020
Let us imagine a scenario where an adult couple make a combined subclass 189 visa application and the secondary applicant provides a bogus document as part of the application. Could the withdrawal of that bogus document before the decision is made avoid the ‘ban’ under PIC 4020(1)? The answer is ‘no’, according to a previous tip on this topic.
As a result, in cases where a secondary applicant for subclass 189 has provided a bogus document and then engages a practitioner to represent them, it might be worthwhile for the practitioner to suggest withdrawing the secondary applicant’s application before the time of decision in order to salvage the primary applicant’s application. In that case, although the MOFU would continue to be a MOFU, he/she would no longer be a MOFU ‘who is an applicant for a Subclass 189 visa’.
Subclauses (2) and (3) – 3 and 10-year ‘ban’
Unlike subclause (1), subclauses (2) and (3) themselves prevent the ban of a visa to an applicant if his/her MOFU has had a visa refused under PIC 4020 during the relevant ‘ban’ period. As a result, even if Schedule 2 for a particular subclass does not make satisfaction of PIC 4020 by a MOFU part of the primary criteria, those 2 subclauses are in and of themselves ‘one fails all fail’ criteria.
Furthermore, those 2 subclauses go one step further by requiring that any MOFU (whether or not also applicants themselves) have not had a visa refused under PIC 4020 during the relevant ‘ban’ periods. After all, those 2 subclauses make no reference as to whether or not the MOFU is an applicant.
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