By Rohan White, Partner and Nicola Johnson, Partner
A number of recent Federal Court decisions have examined the scope and purpose of Public Interest Criterion (PIC) 4020(1). This provision is intended to increase the level of integrity in visa applications by providing a strong disincentive to those considering giving, or causing to be given, a bogus document or information that is false or misleading in a material particular, or not applying in their true identity. Below are some useful reminders on the scope of the provision and the circumstances to which it can be applied by decision-makers.
What is the purpose of PIC 4020?
The policy purpose behind PIC 4020 is to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application. It is directed at the overall integrity of the visa system and as a bulwark against deception and fraud. It makes the visa applicant ultimately responsible for purposely untrue material provided with the visa application – even if they are ignorant of the specific content. The provision applies only prior to granting a visa and cannot be used to cancel an applicant’s visa once the visa has been granted. It also enables refusal where the applicant or a member of their family unit was previously refused a visa because of a failure to meet these requirements. It should also be noted that PIC 4020(4) provides for a dispensing power so that the Minister can grant a visa even though an application contains misleading information if he or she chooses to do so.
What are the key components to PIC 4020(1)?
Subclause (1) erects the substantive requirement that the visa applicant should not have provided information to the Department which was misleading. There are four key components to PIC 4020(1):
- the applicant must have ‘given, or caused to be given’
- to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth
- a ‘bogus document’ or ‘information that is false or misleading in a material particular’, and
- the bogus document or information must be ‘in relation to’ the application for the visa, or a visa that the applicant held in the period of 12 months before the application was made
The term ‘bogus document’ means a document that the Minister reasonably suspects is a document that:
- purports to have been, but was not, issued in respect of the person; or
- is counterfeit or has been altered by a person who does not have authority to do so, or
- was obtained because of a false or misleading statement, whether or not made knowingly.
Examples of bogus documents include documents that:
- could be counterfeit
- were issued by a genuine authority but obtained fraudulently
- purport to have been, but were not, issued by a person with authority to do so, and/or
- purport to have been, but were not, issued in respect of the applicant.
PIC 4020(5) defines ‘information that is false or misleading in a material particular’ to mean information that is:
- false or misleading at the time it is given, and
- relevant to any of the criteria considered when making a decision on an application, whether or not the decision is made because of that information.
Determining whether something is “purposely untrue”
An element of fraud or deception is necessary in order to attract the operation of PIC 4020(1). The provision is directed to information or documents that are purposely untrue. It does not apply to any “objectively” untrue statement or information provided by an applicant or to unintended or accidental matters. However, is not necessary for the visa applicant to be knowingly involved in the giving of false information for PIC 4020 to apply.
This means that it is necessary that the information or document have the necessary quality of purposeful falsity. In relation to bogus documents, a counterfeit document would fall within the scope of PIC 4020 because it is not a document that is produced accidentally. Similarly, a statement that is found to be “false” would enliven PIC 4020(1) because it is not one that it is merely wrong but imports an element of knowledge or intention on somebody’s part to provide the false statement.
The Migration Amendment (Protection and Other Measures) Act 2015 inserted the definition of ‘bogus document’ into s5(1) of the Migration Act, replacing, without amendment, the (now repealed) s97 definition of that term. The definition of bogus document was not amended but its purpose was to broaden the contextual application of the term in the Migration Act
 Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 at 
 Trivedi v Minister for Immigration and Border Protection op. cit.; Chung v Minister for Immigration and Border Protection  FCA 163
 Trivedi v Minister for Immigration and Border Protection op. cit., at