How a bogus document vastly affects Your visa application for Australia? (PART 3)

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How a bogus document vastly affects Your visa application for Australia? (PART 3)


 

What’s a bogus document or information that is false and/or misleading in an application for a visa for Australia from the Philippines.

Public Interest Criterion 4020, permits a case officer to waive the requirements of any or all of PIC 4020(1) and/or (2) if satisfied that:

  • compelling circumstances that affect the interests of Australiaor
  • 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.

If the waiver provision is satisfied, the Filipino applicant satisfies PIC 4020 for the current application.

Unlike the case officer’s ability to waive the requirements of PIC 4020(1) and PIC 4020(2) - that is, the no-fraud requirement and the three year requirement - there is no waiver available on the requirements of PIC 4020(2A) and (2B).

  • Some visa subclasses require applicants to meet a "one fails, all fail" criterion in Schedule 2 of the Regulations.

Essentially, a "one fails, all fail" criterion requires that all of the Filipino applicant’s family unit members, who are applicants for the same visa subclass, meet certain criteria. If just one of their family unit members fail to meet the specified criterion, the Filipino applicant being considered will fail to meet the "one fails, all fail" criterion.

The "one fails all fail" criterion relevant to PIC 4020 is worded as follows: ‘Each member of the family unit of the applicant who is an applicant for a [Subclass name], visa is a person who… satisfies public interest criterion 4020’.

If the "one fails all fail" criterion applies, it is open to a case officer to find that because one MOFU of an applicant (included in the application) does not meet PIC 4020, neither does the applicant being considered.

PIC 4020 can sometimes act in a way that is similar to the "one fails all fail" criterion in Schedule 2 when considering a family group of applicants.

It is possible for one Filipino applicant in a family group to be refused under PIC 4020(1) or PIC 4020(2A), and for the remaining family unit members of that person to then be refused under PIC 4020(2) and (2B), shortly after. If any Filipino applicant included in an application is refused for failing to satisfy PIC 4020(1) or (2A), anyone included in the application who has the refused person as their MOFU may be refused under PIC 4020(2) or(2B) respectively. That is, it is policy that the provisions in PIC 4020(2) and (2B) will be used, rather than refusal under the relevant "one fails all fail" criterion contained in the relevant visa subclass criteria in Schedule 2.

NOTE: -The Filipino applicants who are refused under PIC 4020(2) or (2B) may be subject to the 3 or 10 year period respectively (specified in PIC 4020(2) and (2B)) in further applications for visas (if PIC 4020 is a criterion for the visa), if the applicant who was refused under PIC 4020(1) or (2A) is a member of their family unit.

Additionally, if a member of the Filipino applicant’s family unit had previously been refused a visa on the basis of not satisfying PIC 4020(1) or (2A) during the relevant period, the applicant may fail to satisfy PIC 4020(2) or (2B) respectively, regardless of whether they are included in the same application as the previously refused MOFU.

It is important to remember that it does not automatically follow that secondary Filipino applicants can be refused under PIC 4020(2) or (2B). This is because they may not necessarily have the refused applicant as a member of their family unit.

When considering a secondary applicant under PIC 4020(2), it is not necessarily the case that the primary applicant is a member of the secondary applicant’s family unit, even if the primary applicant had the secondary applicant as a member of their family unit. For example children as secondary applicants would be MOFU for the parents but it would not necessarily follow that the parents are MOFU for the child. Your case officers will need to check the definition of member of the family unit at 1.12 of the Regulations to determine whether this is the case.

Also, PIC 4020(2) is capable of being waived under PIC 4020(4)). It would be a jurisdictional error to fail to consider the waiver in PIC 4020(4).

Secondary applicant does not have a primary applicant who meets primary criteria

Aside from "one fails all fail" criteria in Schedule 2, there might also be capacity to refuse an application by reason of the fact that a secondary applicant does not have a primary applicant who meets the primary criteria. Where PIC 4020 is part of the criteria for both primary and secondary applicants, and the primary applicant does not meet PIC 4020, the case officer may decide to refuse the secondary applicants because they do not have a member of the family unit who has met the primary criteria. From a PIC 4020 policy perspective, the aim is to promote the use of PIC 4020(2) and (2B) in refusing MOFU. But ultimately the discretion lies with your case officer to decide under which provisions to refuse an applicant.

This means that if a case officer finds that one applicant in a family group of applicants does not meet the no-fraud requirement or the identity requirement PIC 4020, they should then turn their mind to whether the other applicants in the group do not meet the three year and/or ten year requirements in PIC 4020.

Example

A Filipino applicant applies for a visa and is refused for failing to satisfy PIC 4020(1). One year later, the applicant’s wife applies for a visa. As they are still married, and therefore still MOFU, the wife’s application would fail to satisfy PIC 4020(2). It does not matter that they applied separately at different times. They would still be considered MOFU, provided the relationship did not end.

Five examples of MOFU application follow.

Note: In these examples a child (who was a minor at the time of application) failing to satisfy PIC 4020(1) or (2A) would be not be subject to the three year or ten year non-grant period created by PIC 4020(2) or (2B).

Example 1: Primary applicant fails to satisfy the identity requirements

In this scenario:

Filipino primary applicant fails to satisfy PIC 4020(2A) - the case officer refuses to grant a visa to the primary Filipino applicant on these grounds

  • secondary applicants, to whom the primary applicant is MOFU, then fail to satisfy PIC 4020(2B) due to the primary applicant’s refusal - the case officer refuses to grant a visa to these secondary applicants on these grounds
  • secondary applicants, to whom the primary applicant is not MOFU, will fail on other grounds (that is, if they do not satisfy primary criteria in their own right and do not have a MOFU who has satisfied the primary criteria).

Example 2: Primary applicant’s spouse provides bogus document or false or misleading information

In this scenario:

  • spouse fails to satisfy PIC 4020(1) - the case officer refuses to grant a visa to the spouse on these grounds
  • primary applicant fails to satisfy PIC 4020(2), due to the spouse’s failure to satisfy PIC 4020(1) - the case officer refuses to grant a visa to the primary applicant on these grounds
  • secondary applicants, to whom the spouse is MOFU, then fail to satisfy PIC 4020(2) due to the spouse’s refusal - the case officer then refuses to grant a visa to these secondary applicants on these grounds
  • secondary applicants, to whom the spouse is not MOFU, will fail on other grounds (that is, if these secondary applicants do not satisfy primary criteria in their own right and do not have a MOFU who has satisfied the primary criteria). 

Example 3: Primary applicant’s dependent child provides bogus document or false or misleading information

In this scenario:

  • child (minor) fails to satisfy PIC 4020(1) - the case officer refuses to grant a visa to the child on these grounds
  • primary applicant fails to satisfy PIC 4020(2), due to the child’s failure to satisfy PIC 4020(1) - the case officer refuses to grant a visa to the primary applicant on these grounds
  • primary applicant’s spouse, who is also the child’s MOFU, fails to satisfy PIC 4020(2), due to the child’s failure to satisfy PIC 4020(1) - the case officer refuses to grant a visa to the secondary applicant who is also the child’s parent on these grounds
  • other secondary applicants will be refused on other grounds (that is, if they do not satisfy primary criteria in their own right, and do not have a MOFU who has satisfied the primary criteria).

Example 4: Primary applicant, who is a child, provides bogus document or false or misleading information

In this scenario:

  • primary applicant who is a child (minor) fails to satisfy PIC 4020(1) - the case officer refuses to grant a visa to the child on these grounds
  • secondary applicants, who have the child as MOFU, fail to satisfy PIC 4020(2) - the case officer refuses to grant a visa on these grounds
  • secondary applicants, who are not the child’s parent or guardian may satisfy PIC 4020(2) due to the definition of MOFU - the case officer refuses to grant a visa on other grounds (that is, if the secondary applicant does not satisfy the primary criteria in their own right, and does not have a MOFU who has satisfied the primary criteria).

Example 5: Primary applicant who is a child, secondary applicant, who is the parent, provides bogus document or false or misleading information

In this scenario:

  • secondary applicant who is the parent fails to satisfy PIC 4020(1) - the case officer refuses to grant a visa to the spouse on these grounds
  • primary applicant who is a child (minor) may satisfy PIC 4020(2), due to the definition of MOFU - the case officer may grant a visa or refuse on other grounds
  • secondary applicants, who are not the parent or guardian of the primary applicant, may satisfy PIC 4020(2) due to the definition of MOFU - the case officer may grant a visa or refuse on other grounds.

Non-grant periods

When a Filipino applicant is refused under PIC 4020(1) or (2A) they may not be able to meet the requirements of PIC 4020(2) or (2B) in future visa applications made within those respective periods. This can be thought of as a "non-grant period" to which that refused person is subject as a result of a refusal under PIC 4020(1) or (2A) but it is important to remember that the three year non-grant period is capable of waiver. Applicants can be subject to more than one three year/ten year period at the same time. The non-grant periods in PIC 4020(2) and (2B) can be activated at different times and run concurrently, not cumulatively.

Example:

  • Filipino applicant is refused a visa on 1 July 2014 for failing to satisfy PIC 4020(2A). The Filipino applicant is then subject to the 10 year non-grant period created by PIC 4020(2B)
  • Filipino applicant applies for another visa on 1 November 2016, for which PIC 4020 is a criterion, and gives a bogus document in that application
  • Filipino applicant’s second visa application is refused for failing to satisfy PIC 4020(1). The applicant is now also subject to 3 year non-grant period in PIC 4020(2)
  • Filipino applicant will still be subject to the 10 year non-grant period until 1 July 2024, however at the same time will also be subject to the 3 year non-grant period between 1 November 2016 and 1 November 2019.

In this example case officers may be inclined to refuse the second visa application for failing to satisfy PIC 4020(2B) without reviewing the application in its entirety because the applicant applied for another visa within the 10 year period. However, by taking the steps to completely review the second visa application the case officer is able to uncover further fraud perpetrated by the Filipino applicant. If further fraud is identified, the case officer can refuse the second application for failing to satisfy PIC 4020 and apply an additional non-grant period. It is in these situations that concurrent non-grant periods are activated.

Note: - Applying multiple non-grant periods conveys the gravity of the continued fraudulent activities to both the applicant and case officers processing future applications of the applicant in question.

RESPALL (Migration) Australia conduct SkillSelect Assessment Seminars at their Makati City office in the Philippines and Partner Conference Calls throughout Australia and the Philippines. Public Interest Criterion 4020 is always discussed and explained during these information discussions and their consequences to the potential Filipino applicants.

If you require more information regarding Public Interest Criteria 4020 or would like to lodge a valid, genuine and continuous permanent visa application to Australia from the Philippines, avoid the migration minefield and safely migrate to Australia from the Philippines then ACT NOW and send your details to the following enquiry link: -

Register NOW and AVOID THE MIGRATION MINEFIELD

May 12, 2017