Unlike the 12-month ‘ban’, which is about visas held within the ban period, the 10-year ban is, like the 3-year ban, 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 10-year ban.
PIC 4020 includes the following provisions:
(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).
It almost goes without saying that failure to satisfy ‘the Minister as to the applicant’s identity’ will result in visa refusal, if PIC 4020 applies to the visa in question. Unlike the 12-month and the 3-year ban periods, there is no waiver for the 10-year ban. No matter how compassionate and compelling the circumstances might be, they will not prevent the refusal under PIC 4020(2A) or (2B).
Falsehood is irrelevant
Unlike the 12-month and 3-year bans, both of which directly or indirectly depend on the giving of a bogus document or false or misleading information in a material particular, the 10-year ban is engaged merely by the Minister not being satisfied as to the applicant’s identity. In other words, as far as the 10-year ban is concerned, there is no need for falsehood in order for the ban to be enlivened.
Suppose an applicant applies for a visa to which PIC 4020 applies but provides no identity documents at all (except for a facial photo) and the Minister is thus not capable of ascertaining the applicant’s identity. Suppose the visa is refused under PIC 4020(2A).
If the same applicant subsequently makes another application for a visa to which PIC 4020 also applies and the Minister is able to ascertain that the applicant is the same (for instance through matching facial photos), the 10-year ban period under PIC 4020(2B) would be enlivened, despite the fact that there was no falsehood involved in either of the 2 visa applications.
In summary, not providing identity documents as part of a visa application could have disastrous consequences.
The ‘ban’ period
Unlike the 12-month ‘ban’, which is about visas held within the ban period, the 10-year ban is, like the 3-year ban, about visas refused within the ban period. Click here for our tip on the 3-year ban.
Note, however, that the 10-year ban is only enlivened if a visa is refused under PIC 4020(2A). Refusals under PIC 4020(1) or (2) have no bearing on the 10-year ban.
Similarly, the ban under PIC 4020(2) is only enlivened if a visa is refused under PIC 4020(1). Refusals under PIC 4020(2A) or (2B) have no bearing on the 3-year ban.
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