The Three-Year Ban Imposed by PIC 4020 Does Not Apply To Visa Cancellation Situations
The three-year ban on applying for a visa after supplying false material in a visa application does not apply following a visa cancellation made on the ground of the visa holder having supplied false material in order to be granted the visa.
A visa can be cancelled if the applicant supplied false information in relation to meeting a visa criterion under s 116(1AB) of the Migration Act which, as relevant, states:
(1AB)…. the Minister may cancel a visa…if he or she is satisfied that:
(a) incorrect information was given, by or on behalf of the person who holds the current visa, to:
(i) an officer; or
(ii) an authorised system; or
(iii) the Minister; or
(iv) any other person, or a tribunal, performing a function or purpose under this Act; or
(v) any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and
(b) the incorrect information was taken into account in, or in connection with, making:
(i) a decision that enabled the person to make a valid application for a visa; or
(ii) a decision to grant a visa to the person;
One example of a common visa cancellation is those holding a second subclass 417 working holiday visa who supplied false information about rural work when in fact they did not do the required work.
However, in relation to later visa application, the three-year ban does not apply. It needs to be noted that Public Interest Criteria (PIC) 4020 is a time of decision criteria.
As relevant PIC 4020 states :
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer…, , a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
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).
Using the subclass 309 partner visa as an example the time of decision criteria for the subclass 309 visa is as follows:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021;
Therefore, one needs to look at the application of PIC 4020 as at the date of decision for the visa. The application of PIC 4020 to any visa application is a matter of applying the ordinary principles of statutory interpretation.
Provided the applicant has not supplied false information in relation to a visa application made after any visa cancellation, then the three-year ban on applying for a further visa does not apply. Dissecting PIC 4020 paragraph by paragraph, one sees that paragraph 4020(1)(a) does not apply because the applicant has not supplied false information in relation to the later visa application under consideration.
PIC 4020(1)(b) will not apply once 12 months has passed since the past visa cancellation has occurred. The 12 months is measured from the date of decision of the later visa application not the date of application of the later visa application.
Looking at PIC 4020(2) one can see that the last phrase – “the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1)” does not apply because the applicant has not been refused a visa on that basis. The applicant has had a visa cancelled because of supplying false information but has not had a visa refused.
There is no warrant to imply that a visa cancelled is a visa refused. In the regulations and Act they are two completely different things.
Hence the three-year ban on applying for a new visa after having had a visa refused based on false information does not apply.
Another practice point on this issue, the time in relation to the 3-year application of PIC 4020 runs from the date of visa refusal based on that false information. It means that in the process of tribunal review and subsequent judicial review, time keeps ticking away which may mean that the 3-year period may have passed by the time of application for a future visa. This does not allow the current visa being applied for to overcome 4020, but it does permit a visa application to be lodged while an applicant is offshore on a bridging visa B.
The writer has done this in relation to a subclass 187 Regional Sponsored Migration Scheme visa. Here the applicant had been refused a subclass 485 visa allegedly on the basis of having supplied information about having worked 900 hours to Trades Recognition Australia in order to obtain a skill assessment.
On returning to Australia the visa applicant will be eligible for further bridging visas while the subclass 187 is under consideration. Here is the example of what happened:
Mr S went offshore while holding a bridging visa B granted on the basis of having commenced judicial review court proceedings against a past subclass 485 visa refusal which was affirmed on review to the tribunal. Mr S applied for an RSMS visa subclass 187 while offshore at the time of application but the actual visa application is lodged electronically by the migration advisor who is present in Australia. Hence the application is made in Australia Subsequently the judicial review proceedings were discontinued. The BVB therefore would expire 28 days after withdrawal of the judicial review proceedings. Before that date the applicant applied for a BVE. The subclass 187 is a visa that can be granted to Mr S while he is present in Australia. At the point when his BVB expires he meets the requirements of paragraph [050.212] (3) which reads:
[050.212] (3) An applicant meets the requirements of this subclause if:
(a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined; or
Mr S applied for a bridging visa E pending the determination of his subclass 187 visa application lodged while he was offshore.
Result: Visa granted (with permission to work).