PIC 4020 Waiver: How to Prove "Compelling or Compassionate Australian Interests”
Facing a visa refusal under Public Interest Criteria “PIC” 4020 due to false or misleading information or bogus documents is a setback towards your visa goal and it imposes a consequence such as a visa refusal and visa bans. While a 10-year ban is non-waivable, the 3-year ban can be overcome through a waiver process if you can demonstrate “compelling or compassionate circumstances”.
Understanding PIC4020 and Its Consequences
PIC4020 applies when the Department of Home Affairs (DoHA) finds that the visa applicant has:
Provided false or misleading information.
Submitted bogus document.
Provided false or misleading information in a previous visa application (within the last 12 months before the current application).
The consequences are:
An immediate visa refusal of your current visa application.
An exclusion period of 3 years from applying for most Australian visas.
For cases involving false or misleading information related to your identity, a 10-year ban is imposed. This 10-year ban cannot be waived.
Waiving PIC4020: What Evidence Do I Need to Meet the “Compelling or Compassionate Circumstances”?
Unlike the non-waivable 10-year ban, the 3-year ban under PIC4020 can be waived if you can demonstrate:
Compelling or compassionate circumstances affecting the interests of an Australian citizen, permanent resident (PR) or eligible New Zealand citizen.
Compelling circumstances affecting the interests of Australia.
The threshold is high, requiring more than just personal inconvenience. Below are some previous PIC4020 cases that DoHA looks for situations where:
A Partner Visa applicant’s PIC4020 refusal (due to a previous agent’s error) was waived. The Australian sponsor had severe drug and alcohol problems, and the Tribunal found that the sponsor would suffer psychological and material hardship if the applicant were refused. The Federal Circuit Court later emphasised that the emotional attachment in a genuine relationship is highly relevant when assessing compelling circumstances.
An employer-nominated form worker and a team leader’s PIC4020 refusal was waived. The AAT (currently known as the ART) found the applicant crucial to a major formwork business involved in large commercial jobs, citing his supervisory role, efforts to retain apprentices, unique skill set (hard to replace), and contribution to business growth. The applicant’s significant voluntary community involvement was considered, and an Australian PR sister was considered on the adverse impact on her and her Australian family unit.
An electrician’s waiver request was denied because there was insufficient evidence to show he was crucial to his employer’s growth, that his skills were not unique, or that he had worked for them only part-time (on a student visa), rendering the claim of compelling circumstances affecting the employer’s interests unconvincing.
The “Migration Agent’s Mistake” Dilemma
A crucial precedent offers hope for applicants who are genuinely innocent victims of a migration agent’s fraud. In this case, an applicant claimed his agent submitted a false skills assessment without the applicant's knowledge. The Federal Court held that merely giving an agent “general authority” does not make an applicant responsible for the agent’s fraud if:
The applicant was entirely innocent and did not collude in the fraud.
There is no evidence that the applicant was “recklessly indifferent” to whether the agent used lawful or unlawful means.
This decision means that if you can prove you were an innocent victim of your agent’s fraudulent actions, you may avoid PIC4020 or a Section 48 Bar being applied against you.
The PIC4020 is a formidable obstacle, but genuine applicants still have hope. The key lies in transparent communication, understanding the legal legislation and building a compelling case based on “compelling or compassionate circumstances.” Engage with an Accredited Specialist in Immigration Law to identify and demonstrate any strong compelling and compassionate reasons.
Read our clients’ testimonials on Agape Henry Crux and Accredited Specialist in Immigration Law, Jason Ling.
Related:
Offshore Partner Visa (SC309) Applicant Overcame PIC 4020 Refusal
I Did Not Disclose My Relationships on My Visa Application. Will It Be Cancelled/Refused by PIC4020?
How Can Agape Henry Crux Help
If you are subjected to PIC4020, whether through a migration agent’s error or your own mistake, contact us today. Our experienced immigration lawyers understand the nuances of these complex provisions and can guide you through the process, helping you strategise to achieve the best possible outcome. Seek professional assistance from our Accredited Specialists in Immigration Law for personalised guidance. The team of immigration lawyers specialise in handling highly complex matters. You can schedule an appointment with one of our lawyers to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin, and Cantonese. If this isn’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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