• What is the Public Interest Criterion (PIC) – 4020?

PIC 4020 allows the Minister to refuse a visa if:

• a. an applicant provides a bogus document; or
• b. an applicant provides information that is false or misleading in relation to their application; or
• c. if the Minister is not satisfied of an applicant’s identity.

If PIC 4020 is part of the criteria for the particular visa you have applied for you must satisfy PIC 4020 in order to be granted your visa.

• What is the three-year ban / re-entry ban

If you have received an unfavourable decision from the Minister for Immigration and Border Protection (Minister), the Department of Immigration and Border Protection (DIBP) or the Administrative Appeals Tribunal (AAT) that you have breached the PIC , then subject to some exceptions,you could be banned from applying for a substantive visa for a period of 3 years.

• When does the ban commence?

The three-year ban commences on the date the Minister’s delegate decided to refuse your visa application. The time will start running from the date of the delegate’s decision. However, what happens if you seek a review of the delegate’s decision in the AAT?

In the recent case of Josan v Minister for Immigration and Anor [2016] FCCA 493 (Josan case), the Full Court of the Federal Court of Australia confirmed that the date from which the three-year ban starts is the date of the Minister’s delegate’s decision. Not only is this alluded to in the legislation,¹but other cases have confirmed this as well.²
The Tribunal’s decision affirming the Minister’s delegate’s decision is ‘the original decision which continues to operate and is not substituted by the later decision of the Tribunal’.³

The Josan case determined that the three-year ban starts to run from the date of the delegate’s decision, not the date of the AAT’s review of the decision.

• How does the ban fit into the visa application process?

When you next apply for a visa you may be required to satisfy the PIC 4020. In order to fulfil the visa application requirements, the Minister or a delegate of the Minister must be satisfied that in the three years before you make a new visa application neither you, nor someone in your family, were refused a visa because you provided or caused to be provided a bogus document or information that is false or misleading in a material particular in relation to a visa application.

If you:

• 1. have been issued with a procedural fairness letter in relation to PIC 4020; or
• 2. your visa has been refused on the basis of PIC 4020,
• please contact the team at FourLion Legal (reception@fourlionlegal.com.au), as we have had success in having such decisions reviewed in both the AAT and the Federal Circuit Court.

Disclaimer

The information provided in this article is general information only, so it does NOT take into account your objectives, legal and migration situation and needs. Before acting on any information contained in this article you should consider the appropriateness of the contents having regard to your objectives, legal and migration situation and needs.

¹ “… when the Minister makes a decision to grant or refuse to grant the visa” PIC4020(2)(b), Schedule 4, Migration Regulations 1994 (Cth), referred to in Josan v Minister for Immigration and Anor [2016] FCCA 493 per Dowdy J at [58].

² Prodduturi v Minister for Immigration and Border Protection & Anor (2015) 144 ALD 243 at [32]-[38].

³ Josan at [52] referring to Kim v Minister for Immigration and Citizenship & Anor (2008) 167 FCR 578 per Tamberlin J at 583 ([23]) who referenced Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 at 249-250.