When you apply for an Australian visa with the Department of Home Affairs (DHA), you must provide accurate and honest information. The Department has many measures in place to check all information provided by the applicant and sponsors.
The Department may refuse your visa application for failing to satisfy Public Interest Criterion (PIC) 4020 if you or any of the members of your family unit:
- do not satisfy DHA as to your identity
- provide bogus documents or information that is false and misleading concerning your current visa application;
- submitted counterfeit papers or information that is false and misleading about a visa that you held in the 12 months before making your present application.
False or Misleading Information – Samuel’s Story
Samuel* approached Putt Legal for help with his Subclass 189 application in August 2019, after he received a letter from the Department stating that they had received “unfavourable information” that did not support the application he submitted on March 2019.
The letter said that Samuel provided “false or misleading” information about his current visa. Samuel is a New Zealand citizen and had a Special Category subclass 444 visa. His 444 visa was issued when he last arrived in Australia, which was January 2019. The Department said that Samuel might not satisfy the Public Interest Criteria 4020 (PIC4020) on his subclass 189 application.
When Samuel arrived in Sydney in January 2019, he completed an Incoming Passenger Card (IPC). The Department said this IPC formed part of his subclass 444 visa application. There is a question on the IPC which asks “Do you have any criminal convictions”? Samuel gave the same answer he did every other time he entered Australia, which was “no”.
On January 2013, Samuel suffered a psychotic episode in a public area in Perth. The police who were in the area were concerned about Samuel’s erratic behaviour in a public place, and so arrested him. The police transported Samuel to a hospital where he received treatment. He was fined $2400 as a penalty. The convictions against him were made “spent” by Perth Magistrates Court, due to the incident being a one-off and because Samuel had never been in trouble before.
Samuel was represented by a criminal lawyer at Perth Magistrates Court. The lawyer who represented Samuel had been practising as a criminal lawyer for thirty years and held a PhD. After the hearing, Samuel asked his lawyer “what does it mean to have a spent conviction“? His lawyer said, “although spent convictions form part of your criminal record, they do not need to be disclosed or taken into consideration for any purpose“. Samuel was relieved to hear this advice because at this time he was frequently travelling in and out of Australia. Every time Samuel arrived in Australia going forward, he ticked “no” for criminal convictions on the IPC because he was confident about his lawyer’s advice.
Misleading the Department
When Samuel ticked no on his IPC in January 2019, he was not attempting to mislead the Department. It was an innocent mistake. Before Samuel lodged his subclass 189, he visited a registered migration agent as he wanted to ensure that he understood the process. Samuel raised the topic of his spent conviction with the migration agent (who claimed to a specialist in this area) and brought a copy of his National Police Check to the meeting. The migration agent discussed at length what Samuel should do about his spent conviction. He advised that Samuel would have to declare the spent conviction on his subclass 189 form as the application asks for “any conviction which is removed from official records?”
Samuel informed the migration agent that he planned to travel that January. He asked “should I be answering ‘yes’ on the IPC ?“ about having a criminal conviction, on his next entry to Australia? The migration agent pulled up a blank IPC on his computer to review. After looking at the relevant question (“Do you have any criminal convictions?”), the migration agent told Samuel not to declare them. He told Samuel to be consistent with what he had previously been doing – that was ticking “no”.
What happened next?
When Samuel received the letter from the Department, his immediate reaction was shock and confusion. After Samuel met with Jessica from Putt Legal, he was advised that he risked his 189 application being refused and face a three-year banning period for failing to satisfy PIC 4020. This was because his situation did not meet the very strict criteria in the letter from the Department which was his circumstances needed to be “compelling” insofar as the “interests of Australia” or “the interests of an Australian citizen or permanent resident” were concerned.
Jessica advised Samuel to immediately submit to the Department a Notice of Incorrect Answers in relation to his subclass 444 visa application, to complete a new on-line IPC and, in doing so, provide a sworn statutory declaration which contained a detailed explanation as to why he had previously failed to declare his spent conviction. Jessica also subsequently wrote a submission to the 189 visa unit about Samuel’s circumstances. As a result, Samuel followed the correct procedure and was able to set the record straight and avoid a PIC 4020 refusal. His 189 visa was granted just weeks after Putt Legal’s submission was lodged!
*We have changed our client’s name for privacy reasons.
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The Australian visa process can be complex and confusing; our lawyers work with you to guide you through every step of the way.
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