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THE TRUTH, THE WHOLE TRUTH and NOTHING BUT THE TRUTH
The Importance of Providing Correct Information in a Visa Application
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In April this year, a new public interest criterion was introduced into Australian migration legislation to provide the Department of Immigration with the ability to refuse to grant a visa where an applicant has produced fraudulent documentation or information. The introduction of the ‘fraud PIC’ now makes it more imperative than ever for visa applicants to ensure that all material provided with their visa application is accurate and genuine.
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All visa applicants are subject to a range of public interest criteria, depending upon the visa category being applied for. The most common public interest criteria are health and character however there are a range of criteria which address issues such as debts to the Commonwealth, ability to become established in Australia, responsibility for minors, risk factors, parental consent
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The public interest criteria ensure that the standards of behaviour and being expected by the Australian public are met by overseas nationals seeking to enter Australia.
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The new fraud PIC applies to the range of visas in the general skilled migration and employment categories including: Skilled Independent (175/885), Skilled Graduate (485), Skilled Regional Sponsored (487), Skilled Sponsored (176/886), Business Long Stay (457), Employer Nomination (856/121) and Regional Sponsored Migration Scheme (857/119).
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The wording of the fraud PIC 4020 is as follows:
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(1) Â Â Â There is no evidence before the Minister that the applicant has 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 in relation to:
(a) Â Â Â the application for the visa; or
(b) Â Â Â a visa that the applicant held in the period of 12 months before the application was made.
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(2) Â Â Â The Minister is satisfied that during the period:
(a) Â Â Â starting 3 years before the application was made; and
(b) Â Â Â ending when the Minister makes a decision to grant or refuse the application;
the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
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(3) Â Â Â To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
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(4) Â Â Â The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) Â Â Â compelling circumstances that affect the interests of Australia; or
(b) Â Â Â compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
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(5) Â Â Â In this clause:
information that is false or misleading in a material particular means information that is:
(a) Â Â Â false or misleading at the time it is given; and
(b) Â Â Â relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
‘Bogus document’ is separately defined in the Migration Act as meaning:
…a document that the Minister reasonably suspects is a document that:
(a) Â Â Â purports to have been, but was not, issued in respect of the person; or
(b) Â Â Â is counterfeit or has been altered by a person who does not have authority to do so; or
(c) Â Â Â was obtained because of a false or misleading statement, whether or not made knowingly;
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The fraud PIC can therefore be extensively applied to current and previous applications, to information, documentation and whether or not the provision of false or misleading material was intentional.
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Applicants considered by DIAC not to meet the fraud PIC will have the opportunity to provide a response / explanation and may, where fraud has been admitted / found , submit that there are compelling and/or compassionate reasons for the grant of the visa.
We recently experienced an early application of the new fraud PIC in relation to a client applying for a 457 (sponsored temporary work) visa.Â
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Initial enquiries through the Australian post overseas indicated that the information the client had provided about previous work experience may have been false. The Department of Immigration sent the visa applicant a ‘please explain’ letter. Upon investigation it was found that the employer questioned by the Australian post had mistakenly provided information regarding another employee. Additional evidence was provided to the Department for its consideration and the client will be finally granted the 457 visa.
In this case, correct information had been provided by the visa applicant however the Department of Immigration was quick to threaten the application of the fraud PIC and put the visa applicant to the proof that correct information had been provided.
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This example, however, is indicative of the alacrity which it appears the Department of Immigration will apply the fraud PIC from now on.
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Visa applicants, of course, are already obliged to provide correct information and documentation in visa applications pursuant to provisions of the Migration Act.
Visa applicants are also required to notify the Department of Immigration of incorrect information as soon as possible.
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Recently a client approached us to advise that she had not included her son’s name in her original application for migration. Whilst this would not have affected the outcome of that application, it is still imperative that the client provided correct information in the application and we advised the client to notify the Department of Immigration of the correct information immediately.
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Whilst the latter client is now an Australian citizen, the omission of information in an application for migration may lead to the cancellation of a visa and therefore it is important that all visa applicants answer all questions in their application forms correctly and fully. Partial information may be construed as misleading. Inaccurate information may give rise to the application of the fraud PIC and a visa refusal.
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On many occasions in the past, clients have suggested to us that they do not need to include details of family members, for example married daughters / sisters who are considered to be part of their husband’s family, in their applications. This is not correct. Full and correct details must be provided and in this case, the family member does not lose her status through marriage.
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Another instance where visa applicants may misguide themselves in relation to the provision of correct information is where a family ‘adoption’ occurs. It is not uncommon, in our experience, for applicants to mention the ‘adoptive’ parents, even though a formal adoption has not taken place, or to omit from including details of natural /adoptive siblings.
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This may become a problem at a later date, sometimes many years later, when the Australian visa holder seeks to sponsor or invite the overseas relative to Australia. There may then be a conflict between the information originally provided to the Department of Immigration and the information proposed to be provided in order to support the sponsorship or invitation, leading to possible refusal of the visa, or at least complications and possible prosecution by the Department of Immigration.
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To avoid the consequences of the fraud PIC or other elements of the Migration Act, visa applicants should ensure that they carefully read the questions asked in the visa application forms and answer fully and truthfully. All supporting documentation should be accurate and correct and, where an error has been made, it should be promptly notified to the Department of Immigration.
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Obtaining professional advice from a registered migration agent prior to the lodgement of the visa application is also an investment well made, especially when the outcome of the application will affect the visa applicant’s prospects of making Australia ‘home’.
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 Aspire Australia are migration specialists located at Suite 7, Level 8, 97 Pacific Highway, North Sydney, NSW 2060. Tel: 02 9956 6011. Email: visas@aspireaustralia.com.au.Contact us if you have any questions.
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