NEW LAW FOR IDENTIFY FRAUD – TEN YEAR EXCLUSION PERIOD

The following information on changes to the Public Interest Criterion (PIC) 4020 is provided by Identity Branch and is for registered migration agents only and not for external distribution or publication.

Background

Amendments to the Migration Regulations 1994 (the Regulations), which will take effect from 22 March 2014, seek to prevent identity fraud in Australia’s visa and citizenship programs, by expanding the application of Public Interest Criterion (PIC) 4020 – so that a relevant visa is not granted unless the Minister is satisfied of the identity of the visa applicant.

The accurate identification of non-citizens underpins the integrity of Australia’s migration and citizenship programs.  All elements of granting a visa, rely on accuracy in identifying non-citizens; the utility of national security and character checks are wholly dependent on accurately identifying each non-citizen who applies for a visa to enter Australia.  Strengthening identity integrity is consistent with the Government’s agenda to improve identity management.  The proposed new identity requirement would clearly communicate the department’s zero tolerance for identity fraud.  As the ‘gatekeeper’ for border control, the department must ensure it accurately establishes the identity of non-citizens who cross Australia’s border.

PIC 4020 was introduced in 2011 to strengthen the integrity of Australia’s immigration program by detecting and preventing visa fraud.  PIC 4020 provides a ground to refuse to grant a visa where there is evidence that the visa applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular 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.

PIC4020 currently applies to over 80 onshore and offshore visas in the students, skilled, temporary and family caseloads.  PIC4020 does not currently apply to refugee, humanitarian or protection visa applicants.  The proposed amendments will not impact on the refugee, humanitarian and protection visa caseloads as these visas are not currently subject to PIC4020. 

Overview of changes

The proposed changes will amend PIC 4020 to introduce a specific identity requirement into the grant of a visa. The features of the proposed identity requirement are:

•A visa must not be granted unless the Minister is satisfied of the identity of the person; and

•A decision to refuse to grant a visa where the Minister is not satisfied as to the identity of an applicant would not be subject to waiver; and

•A ten year exclusion period for grant of another visa would apply where an applicant is refused a visa under PIC4020 on identity grounds.

A decision to refuse to grant a visa where the Minister is not satisfied as to the identity of an applicant would not be subject to waiver.  Because of the foundational element of identity to the integrity of Australia’s migration program, it is appropriate that the exclusion period is greater where a visa is refused on the grounds of identity.  A ten year exclusion period is substantially more than the current three year period under PIC4020 for other types of fraud, but less than a life-time ban. A ten-year exclusion period would better align with the policies of Australia’s Five Country Conference (FCC) partners.  It would also reduce Australia’s potential status as a country of ‘last resort’, where an individual may exhaust their options for migration to other FCC countries before applying to Australia.

In addition, under the proposed amendments, an applicant refused a visa under PIC 4020 on identity grounds would be subject to a ten year exclusion period for the grant of another visa.  This reflects the Government’s view of the primacy of accurately identifying non-citizens to the integrity of Australia’s migration program, and is intended to act as a deterrent.

The new identity requirement is designed to encourage cooperation and compliance by visa applicants with the Department to ensure accuracy in establishing their identity.  The new identity requirement would also cater for an applicant who does not cooperate and provide information or documents where requested to assist the Department to be satisfied as to their identity.  This is because under the new identity requirement, the Minister must be satisfied as to the identity of an applicant to grant a visa.  If insufficient information/documents are provided, or an applicant becomes uncooperative, the visa would be refused.  The Department would have discretion to consider a range of identity-related documents (not only a passport), as well as individual applicant circumstances (such as the availability of identity documents to the applicant) in determining whether it is 'satisfied' as to the identity of an applicant.

Contact my office if you wish to discuss this in more detail.
Geoffrey Ward 
Principal Migration Consultant 
MARN: 0851489