Monday, April 7, 2014

PIC 4020 in the Full Federal Court

On Friday last week (4 April 2014) the Full Federal Court handed down judgment in the first appellate court decision on the meaning of PIC 4020 (bogus documents and misleading information).

The case Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 was about a bogus IELTS test result that was provided as part of the application. Although you can read the whole case by clicking on the link, in my view the most pertinent paragraphs are the following ones:
  1. It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa.  That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application.  I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them.  PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters.  However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term. 
  1. For the reasons I have already given, it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue.  It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application.  Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant.  It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application.  It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so.  In many cases that would be impossible and would defeat the apparent intent of the provision. 

  2. There was no doubt in the present case (and in Vyas) that the IELTS test result form provided by the first appellant contained false information.  It was clearly open to the MRT, on the other facts found by it, to conclude that it was bogus.  It was a counterfeit.  It was not the real thing.

Monday, March 31, 2014

Working Holiday - expanding

Minister Morrison speaking at Tourism and Transport Forum leadership summit, Canberra on 19 March 2014 said:

"Australia's Working Holiday Maker visa programme is a large, popular and growing option for young adult overseas travellers to Australia, with more than 258 000 visa grants in 2012-13, a 15.8 per cent increase from 2011/12.

Remarkably, this is larger than all three of Australia's main Working Holiday Maker competitor markets combined – Canada, New Zealand and the UK.

Established in 1975, the programme has evolved from largely Commonwealth based origins to span 28 countries across the globe, covering Europe, Asia, the United States, Canada and, more recently, expansion into Latin American, following the addition of Chile, Argentine and Uruguay to the scheme.

In terms of participation of travellers from partner countries, the programme has tripled in size over the last decade.

My department is currently in the process of negotiating new and more liberalised Working Holiday Maker visa arrangements with thirteen new partner countries. These include Poland, Mexico, Hungary, Greece, Spain, Portugal, Vietnam, San Marino, the Czech Republic, Israel, Latvia, the Slovak Republic and Andorra. These new countries will provide fresh impetus for growth within the programme itself but also facilitate broader opportunities for tourism engagement.

Providing a unique cultural exchange experience to young adults during their formative years can only enrich the lives of participants, both Australian and partner country nationals.

The economic benefits of the programme too are considerable." [of course!]

Creative commons acknowledgment for the photo.

Sunday, March 23, 2014

Bogus: PIC 4020

Many visas are subject to "public interest criteria" ("PIC"). PIC 4020 provides a ground to refuse to grant a visa where there is evidence that the visa applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular. The scope of PIC 4020 is wider than you think and there is an emerging body of case law on it as well.

It is harsh in its operation (don't get me started) and from 22 March 2014, it's breadth is going to be widened by the Migration Amendment (2014 Measures No 1) Regulation 2014, which is going to add the following to 4020:
  1. (2A)  The applicant satisfies the Minister as to the applicant’s identity.
  1. (2B)  The Minister is satisfied that during the period:
  1. (a) starting 10 years before the application was made; and
  1. (b) ending when the Minister makes a decision to grant or refuse the application;
  1. 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). 
Creative commons acknowledgement for the photograph