Withdrawing doc prevent PIC4020 | Will it?

Withdrawing doc prevent PIC4020 – when applying for a visa, you may be required to satisfy PIC 4020.

What is PIC 4020?

PIC 4020 (Sch 4) is also known as the integrity PIC (Public Interest Criteria). PIC 4020 is to prevent visa applicants from giving bogus documents or false or misleading information to support their visa application. Hence, PIC 4020 is an incentive to visa applicants not to give or cause to give a bogus doc or information that is false or misleading in a material particular (click here to learn more about PIC 4020).

Failure to satisfy PIC 4020 is grounds for your visa application to be refused but is not a ground for your visa to be cancelled.

If you are found not to have satisfied PIC4020, you can ask for it to be waived under PIC 4020(4).

Can withdrawing doc prevent PIC4020 ? To answer whether withdrawing document can prevent PIC4020 or whether withdrawing your visa application can prevent PIC4020 from being applied to your next visa application, we will turn to Tracey J in the case of Mudiyanselage v MIAC [2013] FCA 266.

Mudiyanselage first came to Australia on a student visa. After completing her studies, she applied for a Subclass 485 visa (click here to learn more about VC 485 visa) which was refused because she has provided a reference letter from a company stating that she worked there for more than 920 hours as a volunteer. The reference letter was signed by a person claiming to be the General Manager. This reference letter was used to obtain a positive skills assessment. She then obtained a second skills assessment by providing a reference letter from another company where she actually worked. She then provided the second positive skills assessment and ask for the first skills assessment to be withdrawn. The Department found that reference letter was a bogus doc because the person who claimed to be the General Manager was not a staff and Mudiyanselge has never worked there.

After her Subclass 485 visa application was refused, she applied to the AAT. At the Tribunal hearing, Mudiyanselage claimed that she has been led to believe by her manager that the reference letter was legit. The Tribunal found that she did not meet PIC 4020, even though she has withdrawn the first skills assessment, because she had provided a bogus doc (the skills assessment) to the Minister and that she had provided false and misleading information (the reference letter) to the skills assessor in order to secure a positive skills assessment.

The first or original skills assessment was a bogus doc because it s a doc that the Minister reasonably suspected was obtained because of the false or misleading statement that Mudiyanselage had undertaken the 920hours of voluntary employment. The Tribunal also found that, even if Mudiyanselage was a victim of fraud of her manager and had subsequently obtained a second positive skills which was also before the Department, her circumstances was not compelling for the Member to waive PIC 4020(1) under PIC 4020(4).

Mudiyanselage then appealed to the Federal Magistrates Court where she argued that the first skills assessment had been withdrawn and the second positive skills should not be affected by the first skills assessment. She also argued that the second skills assessment was also provided to the Department and was before the Tribunal. The Federal Magistrate held that the first skills assessment, which was withdrawn, was before the Tribunal and the Tribunal was entitled to conclude that the first skills assessment was a bogus doc which was submitted to support her visa application. The Court also held that it mattered not that the first skills assessment had subsequently been withdrawn and had not been acted on, hence the Tribunal was entitled to conclude that Mudiyanselage had given or caused to be given a bogus doc to the Minister in relation to her visa application. The Court further held that her second skills assessment was not a matter that the Tribunal was required to consider when determining whether Mudiyanselage satisfied PIC 4020(1), it was irrelevant to determine this issue.

After her Federal Magistrate Court appeal was dismissed, she appealed to the Federal Court.

The Federal Court said (at [35]) that PIC 4020 is to “frustrate applicants who submit bogus documents when making a visa application in the hope that they will not be detected but that, if their deceit is exposed, they are able to eschew reliance on the document without prejudice to the success of their application”.

The Federal Court rejected Mudiyanselage’s argument at the Federal Magistrate Court (this argument was not pressed at the Federal Court) that she was free to withdraw her first skills assessment and not to rely on it because once she had withdrawn, the first skills assessment could no longer be regarded as material to her visa application.

The decision in Mudiyanselage confirmed that withdrawing document to prevent PIC 4020 may not help you. Similarly, it also appears that you may not be able to prevent PIC 4020 from being applied to your future visa application (3 years ban applies to those who failed to satisfy PIC 4020).

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation on whether withdrawing doc prevent PIC4020 or whether withdrawing your visa application can prevent PIC 4020 or how to ask for PIC 4020 to be waived.

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.