Many visa applications are lodged by self-represented applicants who possess little to no experience and knowledge about the Australian migration laws and policy. There are various reasons for the large number of self-represented applicants, but perhaps one of the predominant reasons for the large number is the high cost. For some particular visa subclasses, applicants are required to pay filing fees which are in excess of $6,000. In some cases, the filing fees reach well over $10,000 when you take into account the additional dependent applicants as well. Consequently, many applicants attempt to lodge their visa applications themselves to avoid paying a further fee for the assistance of a Migration Agent.

One of the obvious risks with self-representation is completing the application form incorrectly, or providing false information with the belief that the false information will enhance their application. Examples of common errors made include not disclosing full criminal history, regardless of whether they actually served time in prison or not; not disclosing previous relationships; not disclosing all dependent family members including children; and also providing false employment references.

What some applicants may not think are important details can actually turn out to be material to a particular visa subclass, and the result is not only a visa refusal, but also a ban of up to three years from entering Australia. Where false information or bogus documents are provided in relation to an applicant’s identity, the ban can be as high as 10 years.

The relevant law dealing with the providing of incorrect and false information is Public Interest Criteria 4020. Essentially, PIC 4020 enables the Minister to refuse to grant a visa and place a three year ban on an applicant who has given, or caused to be given, a bogus document or information that is false or misleading in a material particular to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical officer of the Commonwealth, 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.

Unintended v Intentional Incorrect Information

There should be a distinction made between the unintentional giving of incorrect information and those who have purposely provided what they know to be incorrect information. The Courts have made attempts to interpret the context and perceived purpose of PIC 4020. The general conclusion is that PIC 4020 was designed to render applicants responsible for the supply of fraudulent and purposely untrue material. Innocent errors are not the focus of attention.

In the Federal Court decision of Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 (4 April 2014), the Full Court held that “PIC 4020 is not directed to innocent, unintended or accidental matters. It should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020.”

Accordingly, applicants who make innocent mistakes on their visa applications do not face these lengthy bans. It can, however, become difficult where an applicant is required to prove the mistake was innocent or unintentional. There is a fine line between innocently providing incorrect information and purposely trying to mislead the Department. Therefore, it is desirable to avoid the situation altogether.

Applying for a Waiver to the Ban

If an applicant is found to be in breach of PIC 4020, they can apply to waive the ban of three years by showing that there are compassionate and compelling circumstances that justify waiving the ban. Some examples of compassionate and compelling circumstances include financial dependency, children or a medical condition. However, whether the circumstances are compelling enough is considered on a case by case basis and case officers have a discretionary power to waive the ban, so there is no guarantee. It also depends on whether the false or misleading information or bogus document outweighs the compassionate and compelling circumstances.

There is no waiver of the ban, however, for applicants who provide false information or documents relating to their identity. In this case, the 10 year ban cannot be removed.

All applicants are advised to carefully review all documentation that is to be submitted to the Department of Immigration and Border Protection. Applicants concerned about their application should seek the assistance of a Migration Agent. What can be a perceived minor oversight can actually turn into something much more menacing down the track. It is better to address any concerns or apprehension about the disclosure of information before the date of lodgement to avoid serious consequences down the line.