On November 4, 2017, the Australian Immigration Service proposed an amendment to the immigration law, which will enter into force on November 18, 2017. These include:
- (B) increase the 8620 clause restricting the amount of medical expenses owed by applicants for temporary visas to the Australian Government;
- (B) amend section 8303 to make it easier for most temporary visas to be cancelled because of crime or violence;
- Increase the filing period of the PIC4020 clause to 10 years and include visas that have been withdrawn in the past.
Compared with the previous two changes, the 4020 change can be described as unprecedented rigor and has a wide range of implications. Let's focus on the 4020 change.
In a word: the new 4020 will allow all visa applicants who have applied for an Australian visa in the past 10 years and have submitted 'wrong or misleading information (False or Misleading Information)' or 'false material (Bogus Documents)'. Rejected at the time of submission of a new Australian visa application.
Section 4020 Public Interest Criteria was added to Australia's Immigration Act in 2011 to ensure the authenticity and accuracy of visa application materials. For visa applicants who provide false material information, punitive restrictions are imposed on their application for a new Australian visa, which reads as follows:
4020
1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, 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) 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 the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
…
(3) 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.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) 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.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) 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.
Note: For definition of bogus document, see subsection 5(1) of the Act.
Public Interest Criteria's logic is this: 4020 itself requires Australian visa applicants to provide no misleading or false information or materials in their previous Australian visa records. When you submit a new Australian visa application, it is stated in the relevant visa terms that your application needs to meet the Public Interest Criteria 4020 clause. For example, article 820.224 of the relevant law on spousal immigration reads as follows:
820.224
(1) Each member of the family unit of the applicant who is an applicant for a Subclass 820 visa is a person who:
…
(c) satisfies public interest criterion 4020.
Therefore, if you have previously provided misleading or false information and materials, you will be refused a visa because you do not meet Clause 4020, resulting in a failure to meet the requirements of your visa application. Is this logic clear? Well, let's talk about how the old 4020 works.
The old 4020 means that if misinformation or false information and materials are provided in the current visa application, or in any visa held by the applicant in the past 12 months, then within three years from the date of refusal or approval of your visa, You are not satisfied with clause 4020.
Examples:
Xiao A applied for 189 skilled immigrants, submitted work experience points, but work experience was found to be false. At that time, he will receive formal notice from the Immigration Service under section 57 of the Immigration Act (s.57 Natural Justice Letter), gives him a time limit of 28 days to explain. He has two options: explanation or withdrawal. If an explanation is chosen, everything will be fine if it is approved; if rejected, clause 4020 will prevent him from applying for the vast majority of Australian visas for the next three years unless he waives 4020. In addition, he has the option of withdrawing the visa so as to avoid the impact of 4020 and resubmit an application for a 189 visa that does not provide information on work experience. The new 189 application could be passed because he had not been denied a visa because he had previously provided false material, and the result of the refusal had not occurred, but had been removed; The new 189 visa application does not use this false information, so he will not be affected by 4020.
Small B applied for 820 spouse immigrants, holding a 500 student visa granted to him in 2016 and a three-month tour visa in 2012 before submitting the 820. At the time of his previous 600 tourist visa application, his marital status was divorce. But because the travel agency that helped Xiao B to apply for the 600 tourist visa worried: if the Immigration Board learned that the divorce status of small B may refuse to sign, in the 600 travel visa application to fill in married. In the process of applying for the 820 visa, the Immigration Service found that his 600 visa application was filled in as a married and misleading information. Small B's 500 student visa does not provide any misleading or false information and materials. Since the 600 visa does not expire within 12 months, B's 820 visa will not be rejected for misleading information in the 600 application.
Through the above examples, can we see the core mechanism of the operation of 4020? The provision of false material can be punished, but the scope of punishment can be so circumvented:
- If the current visa application provides false information, materials, then the Immigration Board will give 28 days to explain. If the visa is withdrawn, it will not be affected by 4020 Australian visa applications for the next three years;
- If the visa held in the past 12 months provided false information, then you can wait 12 months after the expiration of the visa before submitting a new Australian visa application;
The trigger for 4020 is that 'visa applications with false materials' are approved or rejected, excluding visa withdrawals.
However, the revised clause 4020 will enter into force since Nov. 18, 2017. The revision is short:
Paragraph 4020(1)(b) of Schedule 4 Omit “in the period of 12 months”, substitute “or applied for, in the period of 10 years”.
There are two terrible craters: one is clearly 12 months into 10 years; the other is obscure but actually more scary: joining the 'applied for',' means that even if you remove your visa, it will still be affected.
As a result, the new 4020 (1) (b) becomes:
1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, 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) the application for the visa; or
(b) a visa that the applicant held, or applied for, in the period of 10 years before the application was made.
That is, when you submit a 4020-bound Australian visa (the vast majority), if you are found to have provided false information or material in the process of submitting any Australian visa application over the past 10 years, May be rejected by 4020.
Let's look at the effects of change through the previous examples of small A and B. If Little A chooses to withdraw his visa, and then gets a new invitation, does not use the work experience plus points, under the new policy, will still be refused 4020 visa, the option to withdraw visa no longer can protect him. Small B will be rejected by 4020 for misleading information in the 600 tourist visa, allowing him to avoid a 4020 visa refusal, requiring him to wait for the previous 600 tourist visa to expire for 10 years before applying for a new Australian visa.
An expert lawyer in immigration law accredited by the David Gu, Law Society cautions that:
The new 4020 will result in many new Australian visa applications being rejected in the future and the inability to apply for new Australian visas for three years. All visa applicants who had previously received s.57 Natural Justice Letter, and were cited as 4020, and who subsequently chose to revoke their visas, are likely to face 4020 problems when applying for a new Australian visa in the future. Therefore, the legacy of the past history needs to be faced now.
In addition, the past 10 years have been a very broad range. If you have previously chosen an unreliable immigration agent to submit inaccurate information or materials, you are likely to encounter a difficult problem in the process of applying for a new Australian visa that you do not want to see. The choice of professional and rigorous immigration agencies has become particularly important under the new 4020 framework in the future. If careless, waiting for you or will be irreparable loss. Under the new section 4020, everyone who is about to apply for an Australian visa needs to ask himself: what Australian visa did I apply for in the last 10 years? What information and materials have been provided?
